Presented To The Smith County Commissioners Court November 9, 2006

1. County Government – An Analysis of the Authority of the Commissioners Court and Other Elected Officials Presented To The Smith County Commissioners Court November 9, 2006 Greg HudsonHUDSON & O’LEARY LLP1717 West Sixth St., Suite 258Austin, Texas 78703(512) 441-9941ghudson@holaw.net

2. What Does This Presentation Cover? • Explores the Constitutional and Statutory Authority of the Commissioners Court • Explores the Case law and Attorney General Opinions Discussing the Authority of the Commissioners Court Over County Business • Explores the Authority of the District Judges, the Juvenile Board And The County Auditor • Explores the Interplay Between the Commissioners Court and Other County Officials • Addresses Certain Questions Posed By Members of the Commissioners Court

4. Disclaimers • I may not tell you what you want to hear • My focus is on the powers and authority of the Commissioners Court and its interaction with other County officials • I have drafted a paper outlining this authority in greater detail and have furnished you with a copy for future reference • I have omitted a complete description of the Commissioners Court’s statutory powers regarding County business

5. Article V, Section 18 (b) (b Each county shall, in the manner provided for justice of the peace and constable precincts, be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall be elected and qualified. The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed. I. Constitutional Authority of the Commissioners Court and of District Courts

6. Constitutional Authority of the Commissioners Court and of District Courts (cont’d) Article V, Section 1 The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

7. Constitutional Authority of the Commissioners Court and of District Courts (cont’d) Article V, Section 8 District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction. 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.

8. II.\Statutory Authority of Commissioners Court • The Legislature has provided Commissioners Courts with numerous powers and obligations pertaining to matters of County business • These powers are not located in a single Code, but are interspersed throughout the Texas Codes and miscellaneous statutes. • See, Texas Local Government Code, Texas Government Code, Texas Transportation Code, Texas Health & Safety Code, etc. • Some Counties have special grants of authority, dependent on population, location or other factors.

9. Exercise of Constitutional and Statutory Powers By The Commissioners Court One guiding principle is clear – “[t]he Commissioners Court may exercise only those powers vested by the Texas Constitution and the Texas statutes, and those implied powers to the minimum extent necessary to carry out the express powers.” Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). The Commissioners Court does not have general authority over county business and may act only where authorized. See also, Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.--Austin 1997, writ denied).

10. Exercise of Constitutional and Statutory Powers By The Commissioners Court (cont’d) Whether a particular action falls within the Commissioners Court’s implied powers is usually a matter of opinion and judgment, as no Texas Court has set forth a particular test. These issues are usually decided by the Courts on a case to case basis. Texas Attorney General Opinions also are helpful.

11. III.The District Judges’ Authority Regarding Decisions Of The Commissioners Court • Pursuant to Article V, section 8 of the Texas Constitution, District Judges “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.” • In addition, section 24.020 of the Texas Government Code, which provides as follows: § 24.020. JURISDICTION OVER COMMISSIONERS COURT. The district court has appellate jurisdiction and general supervisory control over the Commissioners Court, with the exceptions and regulations prescribed by law. Tex. Gov’t Code §24.020.

12. The District Judges’ Authority Regarding Decisions Of The Commissioners Court (cont’d) Tex. Att’y Gen Op. No. JM-708 (1987), - “cases interpretingarticle V, section 8, of the Texas Constitutionmake clear that a district court may exercise "general supervisory control" over a Commissioners court only when the district court's jurisdiction is properly invoked by the filing of a lawsuit.”Id., citing Scott v. Graham, 292 S.W. 2d 324, 328 (Tex. 1956).

13. The District Judges’ Authority Regarding Decisions Of The Commissioners Court (cont’d) “Case law defines the scope of the district court's jurisdiction. Agan, 940 S.W.2d at 80. A party can invoke the district court's constitutional supervisory control over a commissioners court judgment only when the commissioners court acts beyond its jurisdiction or clearly abuses the discretion conferred upon the commissioners court by law. Id. If the commissioners court acts illegally, unreasonably, or arbitrarily, a district court may so adjudge. Id. But in reviewing a commissioners court judgment for abuse of discretion, the district court has no right to substitute its judgment and discretion for that of the commissioners court. Id. The district court may order the commissioners court to exercise its discretion, but it cannot tell the commissioners what decision to make. Id. Once the commissioners court exercises its discretion, the district court may review the order for abuse of discretion. Id.” Wichita County v. Bonnin, 182 S.W.3d 415, 420 (Tex. App. – Fort Worth 2005, pet. denied)

14. IV. The District Judges’ Authority Over Budgeting Matters Set By The Commissioners Court • The Commissioners Court generally controls and oversees the County budgeting process per chapter 111 of the Texas Local Government Code • However, the Commissioners Court must approve a request for additional funds if it is determined by a trier-of-fact (a District Court) that the additional funding is necessary for the proper functions of the Court. • Both case law and Attorney General Opinions support the idea that the District Court possesses an “inherent power to require the legislative and executive branches to provide essential staffing and facilities for it to properly perform its judicial functions” See Dist. Judges of 188th Jud. Dist. v. County Judge Gregg County, 657 S.W.2d 908, 909 (Tex. App.-Texarkana 1983, writ ref'd n.r.e.), Tex. Att’y Gen. Op. No. JC-563(2002).

15. The District Judges’ Authority Over Budgeting Matters Set By The Commissioners Court(Excerpt from Tex. Att’y Gen. Op. No. JC-563 (2002)

16. V.The District Judges’ Authority Regarding Their Administrators, Court Coordinators and Court Reporters. Court Coordinators - Per the applicable provisions of subchapter E of chapter 74 of the Texas Government Code, court coordinators are appointed by the District Judges and County Court at-law Judges[1], such judges by administrative rule designating the duties of the court coordinators.[2] The judges shall determine the reasonable compensation for the court coordinators, subject to the approval of the commissioners court,[3] which, upon approval of such position and compensation shall provide the necessary funding through the county’s budget process.[4] [1] Tex. Gov’t Code § 74.101. [2] Tex. Gov’t Code §74.102(a). [3] Tex. Gov’t Code §74.104(a). [4] Tex. Gov’t Code §74.104(b).

17. The District Judges’ Authority Regarding Their Administrators, Court Coordinators and Court Reporters • Court Reporters – Tex. Gov’t Code § 52.041.  Appointment of Official Court ReporterEach judge of a court of record shall appoint an official court reporter. An official court reporter is a sworn officer of the court and holds office at the pleasure of the court. • Court Reporters are employees of the State, not the County - Gill-Massar v. Dallas County, 781 S.W.2d 612, 617 (Tex.App.--Dallas 1989, no writ). • The District Judge sets the compensation of his/her Court reporter. The Texas Supreme Court has held that the Commissioners Court has no discretion to refuse a pay increase for a duly appointed court reporter where the pay increase was proposed by a District Judge. See Mays v. Fifth Court of Appeals, 755 S.W.2d 435 (Tex. 1988).

18. The District Judges Authority Over The Appointment And Supervision Of The County Auditor • TEX. LOC. GOV’T CODE § 84.002. APPOINTMENT OF COUNTY AUDITOR. (a) In a county with a population of 10,200 or more, the district judges shall appoint a county auditor. • TEX. LOC. GOV’T CODE § 84.003. PROCEDURE FOR APPOINTMENT. (a) The district judges shall appoint the county auditor at a special meeting held for that purpose. If a majority of the judges cannot agree on the selection of a person as county auditor, one of the judges shall certify that fact to the governor, who shall appoint another district judge to act and vote with the district judges to select the county auditor. (b) The clerk of the district court shall record the judges' action in the minutes of the court and certify it to the commissioners court. The commissioners court shall record in its minutes the judges' action and an order directing the payment of the auditor's salary. • TEX. LOC. GOV’T CODE § 84.021. ASSISTANTS. (a) From time to time the county auditor may certify to the district judges a list stating the number of assistants to be appointed, the name, duties, qualifications, and experience of each appointee, and the salary to be paid each appointee. The district judges, after careful consideration of the application for the appointment of the assistants and after inquiry concerning the appointees' qualifications, the positions sought to be filled, and the reasonableness of the requested salaries, shall prepare a list of the appointees that the judges approve and the salary to be paid each. The judges shall certify this list to the commissioners court, which shall order the salaries to be paid on the performance of services and shall appropriate an adequate amount of money for this purpose.

19. COMPENSATION OF COUNTY AUDITOR • Procedures for setting the compensation of the auditor and assistant auditors are set forth in chapter 152 of the Local Government Code. • Before setting such compensation, the judges must hold "a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard." Id. §152.905(b). Notice of the time, place, and subject of this hearing "must be published in a newspaper of general circulation in the county" at least fifteen days beforehand. Id. §152.905(c). • The amount of compensation to be paid must be voted on by the judges at this meeting, and the vote "must be recorded, transcribed, and maintained as a public record." Id. §152.905(d). With respect to the salary and expenses of the auditor, "the action of the district judges must be taken by order and must be recorded. . . in the minutes of the district court." Id. §152.031(a). • The district clerk thereupon certifies the order to the commissioners court, which "shall cause the order to be recorded in its minutes." Id. §152.031(b). • The district judges may amend the salaries of the auditor and the assistant auditors after the county budget has been approved, and the new budget year has begun (*but must meet conditions set forth in Tex. Att’y Gen. Op. No. JM-49 (1983)).

20. The County Auditor’s Authority Over Expenditures and Purchasing Decisions of the Commissioners Court • The Commissioners Court’s budgeting and expenditure authority is set out in chapter 111 of the Texas Local Government Code. • The Commissioners Court may expend funds only in strict compliance with the budget as originally approved. See, Tex. Loc. Gov’t Code §111.041 and §111.070 • The Auditor's approval is a condition precedent to the Commissioners Court's consideration of the bill. Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App. - Dallas 1976, writ dism'd). One of the functions of the office of County Auditor is to operate as a part of a delicate system of checks and balances to protect county funds. Id. Both the Auditor (Section 11.064(a)) and the Commissioners Court (Section 115.021) are required separately to examine and make a decision as to whether to approve each claim against county funds. Id. The legislative scheme of control of county funds requires specific approval of the claim by the Auditor before consideration by the Commissioners Court. Id.Likewise, the Auditor may not direct the expenditure of county funds without the County Commissioners order. Id. Crider v. Cox, 960 S.W.2d 703, 706 (Tex. App. - Tyler 1997, writ denied)

21. The County Auditor’s Authority Over Expenditures and Purchasing Decisions of the Commissioners Court • The powers and duties of the County Auditor are set out generally in chapter 115 of the Texas Local Government Code. • The County Auditor is generally in charge of examining the correctness of the books, accounts, and the orders of the Commissioners Court relating to County finances. See Tex. Loc. Gov’t Code§115.001. • Absent sufficient funds within an appropriation account in the budget, the County Auditor is without the authority to pay a bill or invoice from that account. To do so would first require a budget amendment transferring sufficient funds into the line-item account in amounts sufficient to pay the bill or invoice.

22. The Authority Of The Smith County Juvenile Board Tex. Human Resources Code § 152.2181. SMITH COUNTY. (a) The Smith County Juvenile Board is composed of the county judge, the district judges in Smith County, and the judge of each county court at law. (b) The county judge is the chairman of the board and its chief administrative officer. (c) The commissioners court may pay the board members annual additional compensation in an amount set by the commissioners court. The additional compensation is for the added duties imposed on the members and shall be paid in equal monthly installments from the general fund of the county. (d) Sections 152.0002, 152.0004, 152.0005, 152.0006, 152.0007, and 152.0008 do not apply to the juvenile board of Smith County.

23. The Authority Of The Smith County Juvenile Board (cont’d) Tex. Human Resources Code § 152.2182. SMITH COUNTY CHILD SUPPORT OFFICE. (a) The Smith County Juvenile Board may establish a child support office in the district clerk's office to collect and disburse child support payments that are required by court order to be made to the county. The office shall receive and disburse the payments in the manner the court believes to be in the best interest of the parties in the case. (b) The juvenile board may appoint an administrator and other necessary assistants to serve two-year terms. The administrator shall obtain a surety bond in an amount determined by the county auditor from a solvent surety company authorized to make the bonds in this state and approved by the county auditor. The bond shall be conditioned on the faithful performance of the administrator's duties and on the proper accounting of the money entrusted to the administrator. The county shall pay the premium for the bond from the general fund of the county, the child support fund, or any other available fund. (c) The board shall determine the duties of the administrator and assistants and set their salaries. The salaries are payable in equal monthly installments from the general fund of the county, the child support fund, or any other available fund. The board must approve a claim for expenses made by the administrator or an assistant or a claim for administrative expenses in operating the child support office, including a claim for payment of equipment and supplies. (d) The office shall keep an accurate and complete record of money received and disbursed under this section. The county auditor or other authorized county officer or employee shall inspect and examine the records and audit the accounts quarterly. The record is open to the inspection by the public. The auditor shall report the results of the audit to the judges and include any recommendations the auditor may have.

24. The Authority Of The Smith County Juvenile Board (cont’d) Tex. Human Resources Code § 142.002. APPOINTMENT OF PERSONNEL AND SALARY. • A juvenile board may, with the advice and consent of the commissioners court, employ probation officers and administrative, supervisory, stenographic, and other clerical personnel necessary to provide juvenile probation services according to the standards established by the Texas Juvenile Probation Commission and the local need as determined by the juvenile board. • The juvenile board may, with the advice and consent of the commissioners court, designate the titles of the employees and set their salaries.

25. The Authority Of The Smith County Juvenile Board (cont’d) Tex. Human Resources Code § 152.0038. SALARIES AND EXPENSES. • The juvenile board shall pay the salaries of juvenile probation department personnel and other expenses required to provide adequate services to children from the juvenile board fund to the extent of the state aid received in the fund. • The county shall pay other salaries and expenses essential to provide adequate services to children in an amount set by the juvenile board with the advice and consent of the county commissioners court. • With respect to the items funded by the county, the commissioners court . . .[the commissioners court] may only determine the total dollar amount of county funds allocated to the department. [TEX. LOC. GOV'T CODE ANN. §111.094 (Vernon 1999)]. It may not determine the particular purposes or amounts of any expenditures from these or any other funds the department receives. Tex. Att'y Gen. Op. No. DM-460 (1997), cited by Tex. Att'y Gen. Op. No. JC-0085 (1999)

26. Specific Questions And Answers Question - May the Commissioners Court require all elected officials to come before them at budget time to discuss their budget requests? Answer: No. Although it is commonplace for elected officials to discuss their budget requests with the County Judge and/or Commissioners Court, there is no provision in chapter 111 for departmental budget hearings. ** However, section 111.005 of the Texas Local Government Code requires all County officers to provide such information as is necessary for the County Judge to prepare the budget. *** In addition, the Budget Officer (County Judge, County Auditor, or Budget Officer) may interview elected officials in connection with their budget requests – as the Budget Officer has a duty to prepare the draft budget

27. Specific Questions And Answers Question - What authority do the District Judges have over staff that work for the Commissioners Court? Answer: None, unless the testimony of such staff is necessary in the case of a live case or proceeding before such District Judge. Conversely, the Commissioners Court possesses little authority over the personnel employed by the District Judges.

28. Specific Questions And Answers Question- Can Commissioners act as liaisons between departments that answer directly to the Court? Answer: Yes, although final decisionmaking authority rests with the Commissioners Court. Individual Commissioners must interact with County departments in order to make informed decisions. However, individual Commissioners possess no authority to direct department heads in the conduct of County business. **Reminder to Commissioners - be mindful of the Texas Open Meetings Act

29. Specific Questions And Answers Question - Does the Auditor have the authority to refuse to release funds to support a program or expenditure that the Commissioners Court approves when the expenditure is clearly in line with the adopted business plan? When does the auditor have the authority to "veto" funding? If the Commissioners Court disagrees with the Auditor, what is their recourse, since the auditor serves at the pleasure of the district judges? Answer: The Auditor must approve and release funds for a program for which: 1) the Commissioners Court has approved by a majority vote at a properly noticed meeting; 2) for which funds have been appropriated and designated in the current budget in amounts sufficient to cover such expense; and 3) which satisfies County procurement laws. The Auditor may properly reject payment on any item that violates one or more of the prongs set forth above.

30. Specific Questions And Answers Question -What is the proper role of the legal counsel to the Commissioners Court? Answer: Legal Counsel to the Commissioners Court is no different from legal counsel to a client – the attorney owes a duty to 1) zealously represent and defend his client’s interests, 2) to provide competent legal advice and counsel solely for the benefit of his client’s interests; and 3) to render services ethically and in keeping with the canons of professional ethics. Question - Must the Commissioners Court get permission from the District Attorney to hire its own independent counsel? Answer: No permission is necessary for the Commissioners Court to hire independent legal counsel. The commissioners court, pursuant to its implied power to accomplish its constitutional and statutory directives, may contract with experts when necessary, including attorneys. Tex. Att’y Gen. Op. No. GA-153 (2004).

31. Question - May elected county officials allow vendors to approach county employees regarding their interest in supplemental insurance benefits without going through the Commissioners Court? Answer: If the supplemental insurance is provided to county employees through a county insurance program, such program and the insurance vendor must be chosen by the Commissioners Court per the County Purchasing Act if the cost of such insurance, in the aggregate exceeds $25,000. If the supplemental insurance is not part of the County’s benefits program, the other elected county officials may set office policies for their employees, which may include limiting vendor contacts to those employees. Further, section 155.061 of the Texas Local Government Code leaves it to the Commissioners Court whether to authorize the payroll deduction for insurance premiums.

32. County Government – An Analysis of the Authority of the Commissioners Court and Other Elected Officials Presented To The Smith County Commissioners Court November 9, 2006 Greg HudsonHUDSON & O’LEARY LLP1717 West Sixth St., Suite 258Austin, Texas 78703(512) 441-9941ghudson@holaw.net