Can a county commissioners court let the treasurer pay bills before the court approves them?

Plain-English summary

The Walker County Criminal District Attorney asked the AG, on behalf of the county treasurer and auditor, whether the commissioners court could enter a standing order letting the treasurer pay certain kinds of claims and bills before the actual claims were presented to the court. The practical problem was timing: the county's biweekly payroll did not always line up with the court's regular meetings on the second and fourth Mondays, so the court could not always approve payroll on time. The proposed order would have given blanket advance approval for categories like payroll and benefits, debt service, payments to government agencies, court orders, grant payments, utilities, fuel cards, and credit card drafts, with the bills paid after documentation and an audit, and the treasurer later reporting to the court what had been paid. The order also recited a prior order waiving the requirement that all claims be approved in open court.

The AG concluded the order did not work. Under the Local Government Code, the treasurer disburses county funds as required by law and as the commissioners court directs, and may not pay out county money without an order from an authorized officer; the treasurer has no authority to approve claims. The commissioners court itself must audit and settle all accounts against the county, direct their payment, and examine financial reports against the vouchers. Those statutes put a duty on the court to examine and approve or disapprove claims, and county funds may not be spent without the court's approval.

There was also an open-government problem with the recited waiver. The commissioners court is a governmental body under the Open Meetings Act, so its meetings to discuss public business or take formal action generally must be open, and a claim, invoice, or bill must be approved at a meeting held under the Act. The court cannot waive its duty to order payment of claims only in an open meeting, because the Act demands exact and literal compliance.

The core defect was delegation. The proposed order did not say who decides whether a given claim qualifies for payment, which would leave that judgment to the treasurer or auditor. That is not the examination and approval the court must perform; it hands the court's oversight to staff. A commissioners court may not delegate powers requiring the exercise of judgment and discretion unless a statute expressly lets it, and reviewing payrolls and approving payment of claims are nondelegable duties. So the court could not authorize the treasurer to pay these claims before they were presented to the court. The AG did, though, answer the timing worry: the court may review and direct payment of payroll and claims at a special meeting on a day other than its regular meeting day, provided it follows any statute applicable to the particular subject. The AG also noted it might be possible to adjust the county's payment schedules to fit the regular meetings.

Currency note

This opinion was issued in 2017. 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, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered that the proposed order did not comply with the commissioners court's duties under sections 115.021 and 115.022 of the Local Government Code, because it would delegate the court's nondelegable duty to approve payment of county claims and payroll to the treasurer and auditor.

The county treasurer and auditor (as the opinion described them): The opinion treated the treasurer as lacking authority to approve or pay claims without the commissioners court's approval, and described the decision whether a claim qualifies for payment as one the court must make, not staff.

The commissioners court (as the opinion described it): The opinion explained that the court must examine and approve claims at an open meeting and cannot waive that duty or delegate it, but may meet in special session on a day other than its regular meeting day to review and direct payment of payroll and claims.

Common questions

Can a commissioners court pre-approve categories of bills so the treasurer can pay them later?
Under this opinion, no. The AG concluded that blanket advance approval that leaves the treasurer or auditor to decide which claims qualify would delegate the court's nondelegable duty to examine and approve claims.

Can the treasurer pay claims without the commissioners court's approval?
The opinion said no. The treasurer has no authority to approve claims and may not disburse county money without an order from an authorized officer, and county funds may not be spent without the court's approval.

Can the court waive the open-meeting requirement for approving claims?
The opinion said the court lacks authority to waive its duty to order payment of claims only in an open meeting, because the Open Meetings Act requires exact and literal compliance.

Does the court have to wait for its regular meeting day to approve payroll?
No. The opinion concluded the court may review and direct payment of payroll and claims at a special meeting held on another day, as long as it complies with any statute applicable to the particular subject.

Background and statutory framework

The county treasurer must disburse county funds as required by law and as the commissioners court directs (Tex. Loc. Gov't Code § 113.041(a)) and may not disburse county money without an order of an authorized officer (Tex. Loc. Gov't Code § 113.041(c)); the treasurer has no authority to approve claims (Tex. Att'y Gen. Op. No. H-171 (1973) at 4-5). The commissioners court must audit and settle all accounts against the county and direct their payment (Tex. Loc. Gov't Code § 115.021), and must examine financial accounts and reports against the vouchers and correct them as appropriate (Tex. Loc. Gov't Code § 115.022(a)). Those statutes impose a duty to examine and approve or disapprove claims, and funds may not be expended without the court's approval (Tex. Loc. Gov't Code §§ 115.001-.022; Navarro Cty. v. Tullos, 237 S.W. 982, 987 (Tex. Civ. App.—Dallas 1922, writ ref'd); Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.—Dallas 1976, writ dism'd)).

The commissioners court is a governmental body under the Open Meetings Act (Tex. Gov't Code § 551.001(3)(B); Comm'rs Court v. Agan, 940 S.W.2d 77, 79 (Tex. 1997)), and its meetings to discuss public business or take formal action generally must be open (Tex. Gov't Code §§ 551.001(4)(A), 551.002). A claim, invoice, or bill must be approved at a meeting held under the Act (Tex. Att'y Gen. Op. No. JC-0307 (2000) at 1; Swaim v. Montgomery, 154 S.W.2d 695, 696-97 (Tex. Civ. App.—Amarillo 1941, writ ref'd)), and the court cannot waive that duty, as the Act requires exact and literal compliance (Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990); Tex. Att'y Gen. Op. No. GA-0412 (2006) at 2).

A commissioners court may not delegate powers requiring the exercise of judgment and discretion absent a statute expressly authorizing it (Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.—San Antonio 1951, no writ); Tex. Att'y Gen. Op. Nos. KP-0052 (2015) at 2 n.2, JC-0370 (2001) at 3). Examining and directing payment of claims and reviewing payrolls are nondelegable duties (Smith, 533 S.W.2d at 459; Tex. Att'y Gen. Op. Nos. JM-192 (1984) at 5, H-977 (1977) at 6, O-5049 (1943) at 2-3). The Local Government Code requires the court to designate a regular monthly meeting day but also authorizes special meetings (Tex. Loc. Gov't Code § 81.005(a), (g)), and the treasurer must make a financial report and submit vouchers for audit at least once a month at a regular term, implying claims may be presented more often (Tex. Loc. Gov't Code § 114.026). For counties over 190,000 in population, certain officers may issue warrants against the salary fund (Tex. Loc. Gov't Code §§ 113.047, 154.043), but Walker County's population was about 67,861. So the court could review and direct payment at a meeting on a day other than its regular meeting day, provided it complied with any statute applicable to the particular subject.

Citations

Statutes:

• Tex. Loc. Gov't Code §§ 113.041(a), 113.041(c), 113.047, 114.026, 115.001-.022, 115.021, 115.022(a), 81.005(a), (g), 154.043
• Tex. Gov't Code §§ 551.001(3)(B), 551.001(4)(A), 551.002
• Tex. Att'y Gen. Op. Nos. H-171 (1973), JC-0307 (2000), GA-0412 (2006), KP-0052 (2015), JC-0370 (2001), JM-192 (1984), H-977 (1977), O-5049 (1943)

Cases:

• Navarro Cty. v. Tullos, 237 S.W. 982 (Tex. Civ. App.—Dallas 1922, writ ref'd)
• Smith v. McCoy, 533 S.W.2d 457 (Tex. Civ. App.—Dallas 1976, writ dism'd)
• Comm'rs Court v. Agan, 940 S.W.2d 77 (Tex. 1997)
• Swaim v. Montgomery, 154 S.W.2d 695 (Tex. Civ. App.—Amarillo 1941, writ ref'd)
• Acker v. Tex. Water Comm'n, 790 S.W.2d 299 (Tex. 1990)
• Guerra v. Rodriguez, 239 S.W.2d 915 (Tex. Civ. App.—San Antonio 1951, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0160
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0160.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 8, 2017

The Honorable David P. Weeks Opinion No. KP-0160
Walker County Criminal District Attorney
1036 11th Street Re: Whether a commissioners court may
Huntsville, Texas 77340 enter an order authorizing the treasurer to pay
certain types of claims and bills prior to
presenting the actual claims or bills to the
commissioners court (RQ-0150-KP)

Dear Mr. Weeks:

    You ask on behalf of the treasurer and the auditor of Walker County whether a commissioners court may enter an order authorizing the treasurer to pay certain types of claims and bills prior to presenting the actual claims or bills to the commissioners court. [1] You state that the county's biweekly payroll schedule does not always coincide with the commissioners court's regular meetings, held the second and fourth Mondays of each month, such that the commissioners court may timely approve payroll at a regular meeting. Request Letter at 1-2. You also tell us the county auditor proposed an order to provide for expedited payment to timely meet payroll, ensure continuity of service, and avoid late fees for credit cards. Id. at 1.

    The proposed order recites that a prior order of the commissioners court waived the requirement that all claims be approved in open court. Id. at Exhibit "A." Under the proposed order, the commissioners court would provide blanket approval for the following items before they accrue:

          • Payroll, related employee deductions and benefits and payroll taxes
          • Debt Service Payments
          • Payments to the State and Federal Government and their agencies
          • Orders of District Courts and County Court at Law
          • Grant related payments to meet grant timing deadlines
          • Utility and telecommunications services to assure continuation of service
          • Fuel cards to assure continuation of service
          • Credit card bills that are paid by drafts initiated by the Credit Card Company

Id. Such claims could be paid "after the invoice/claim has been presented with appropriate documentation and authorizations by department heads and elected officials and following approval thru the audit process." Id. Thereafter, the treasurer would present the commissioners court with a report of the bills paid. Id. The treasurer and auditor stated that without the proposed order, they will ask the commissioners court for twenty-five special sessions throughout the year to be held on Wednesdays rather than on Mondays. Id. at 2. You ask whether the proposed order complies with the treasurer's duties under section 113.041 of the Local Government Code and the commissioners court's duties under sections 115.021 and 115.022. Id.

    The Local Government Code specifies the method to approve claims against the county and to disburse county funds to pay the claims. Under section 113.041(a) of the Local Government Code, the county treasurer must disburse county funds "as required by law and as the commissioners court may require or direct." TEX. LOC. GOV'T CODE § 113.041(a). The treasurer may not disburse county money without an order of an authorized officer. Id. § 113.041(c). Under the Local Government Code, the treasurer has no authority to approve claims and may not pay claims without commissioners court approval. See Tex. Att'y Gen. Op. No. H-171 (1973) at 4-5.

    Section 115.021 requires the commissioners court to "audit and settle all accounts against the county and shall direct the payment of those accounts." TEX. LOC. GOV'T CODE § 115.021. Further, the commissioners court must examine county financial accounts and reports, compare them with accompanying vouchers, and correct the accounts and reports as appropriate. Id. § 115.022(a). These statutes impose a duty on the commissioners court to examine and approve or disapprove claims against the county. Id. §§ 115.001-.022; see also Navarro Cty. v. Tullos, 237 S.W. 982, 987 (Tex. Civ. App.—Dallas 1922, writ ref'd). County funds may not be expended without the commissioners court's approval. Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.—Dallas 1976, writ dism'd).

    A commissioners court transacts a county's business as its principal governing body and is a "governmental body" subject to the Open Meetings Act. TEX. GOV'T CODE § 551.001(3)(B); Comm'rs Court v. Agan, 940 S.W.2d 77, 79 (Tex. 1997). Generally, all of its meetings to discuss public business or take formal action must be open to the public. TEX. GOV'T CODE §§ 551.001(4)(A), .002. Thus, a prior opinion of this office concluded that under the Open Meetings Act, "a claim, invoice, or bill must be approved by a commissioners court at a meeting held pursuant to the Act." Tex. Att'y Gen. Op. No. JC-0307 (2000) at 1; see also Swaim v. Montgomery, 154 S.W.2d 695, 696-97 (Tex. Civ. App.—Amarillo 1941, writ ref'd) (stating that commissioners do not act individually; rather, "[t]hey meet as a court and transact the county business in open session"). The commissioners court lacks the authority to "waive" its duty to order payment of claims only in an open meeting. See id.; see also Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990) (requiring "exact and literal compliance with the terms" of the Act); Tex. Att'y Gen. Op. No. GA-0412 (2006) at 2 (stating that a governmental body may issue an order concerning meetings only if they "are consistent with the Texas Open Meetings Act and other laws applicable to the governing body").

    Thus, the pertinent issue is whether the commissioners court may approve claims before they accrue, to be paid as the claims are presented with "appropriate documentation and authorizations" and approved through the county audit process. Request Letter at Exhibit "A." The proposed order does not expressly address who determines whether a particular claim satisfies requirements to qualify for payment, implicitly leaving the decision to the treasurer or the auditor. See id. Thus, such an order would not constitute the examination and approval the commissioners court must undertake under the Local Government Code; rather, the order would delegate the commissioners court's oversight responsibilities to the treasurer and the auditor. A commissioners court may not delegate its powers requiring the exercise of judgment and discretion absent a statute expressly authorizing it to do so. See Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.—San Antonio 1951, no writ); see also Tex. Att'y Gen. Op. Nos. KP-0052 (2015) at 2 n.2 (determining that a commissioners court may not delegate its budget authority), JC-0370 (2001) at 3 (determining that a "commissioners court has a nondelegable duty to review county payrolls and to issue warrants"). [2] Accordingly, a commissioners court cannot delegate to the county treasurer or the auditor the commissioners court's duty and authority to approve payment of county claims and payroll. See Smith, 533 S.W.2d at 459 (commissioners court's duties to examine and direct payment of claims are nondelegable duties); Tex. Att'y Gen. Op. Nos. JM-192 (1984) at 5 (determining that payment of salaries to county employees requires commissioner court approval); H-977 (1977) at 6 (determining that county commissioners court cannot delegate its authority to audit and settle claims against the county); O-5049 (1943) at 2-3 (determining that commissioners court may not in a standing order authorize the county auditor to pay officers and employee salaries and utility bills). Thus, the proposed order authorizing the treasurer to pay certain types of claims and bills prior to presenting the actual claims or bills to the commissioners court does not comply with the commissioners court's duties under sections 115.021 and 115.022 of the Local Government Code.

    Finally, you ask whether the commissioners court "may approve payment of the claims and bills described in the proposed order in a special session held on a day other than when the Court usually meets for its regular session." Request Letter at 2. You advance no reason why the commissioners court's authority to approve a claim or other disbursal is any less for a meeting called for a day other than the commissioners court's regular meeting day. Section 81.005 of the Local Government Code requires commissioners courts to "designate a day of the week on which the court shall convene in a regular term each month," but the section also authorizes special meetings. TEX. LOC. GOV'T CODE § 81.005(a), (g). The treasurer must make a financial report, exhibit the treasurer's books and records, and submit vouchers for audit and approval "[a]t least once a month at a regular term of the commissioners court," implying that claims may be presented for approval more often. Id. § 114.026. Provided it complies with any statute applicable to the particular subject matter, a commissioners court may review and direct payment of payroll and claims at a meeting called for a day other than the commissioners court's regular meeting day. [3]

                                 SUMMARY

                  Under sections 113.041, 115.021, and 115.022 of the Local
          Government Code, the commissioners court must approve claims,
          and the treasurer and auditor do not have the authority to pay claims
          without the commissioners court's approval. A commissioners
          court cannot delegate to the county treasurer the commissioners
          court's duty and authority to approve payment of county claims.
          Provided it complies with any statute applicable to the particular
          subject matter, a commissioners court may review and direct
          payment of payroll and claims at a meeting called for a day other
          than the commissioners court's regular meeting day.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable David P. Weeks, Walker Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 21, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] For counties with a population greater than 190,000, the Local Government Code authorizes county officers to issue warrants against the salary fund of the county to pay salaries and draw checks on the county treasurer to pay salaries. TEX. LOC. GOV'T CODE §§ 113.047, 154.043. You inform us that Walker County's population is approximately 67,861. Request Letter at 1.

[3] While the auditor and the treasurer assert that more commissioners court meetings are needed to meet various payment deadlines, it may be possible to adjust the county's payroll and other payment schedules to more closely conform to the commissioners court's regular meeting schedule.