Who can remove a Texas county auditor, and what process is required?

Plain-English summary

Chambers County had a personnel problem: a county employee complained about the conduct of the county auditor, and the county attorney, Scott Peal, wanted to know how the law lets a county deal with removing an auditor. He asked the Attorney General four related questions about who has the authority to remove a county auditor and what procedure applies, focused on Local Government Code section 84.009, the statute that governs auditor removal for official misconduct.

The AG started with the larger structure. Article V, section 24 of the Texas Constitution lets district judges remove county officers for official misconduct, with the cause set out in writing and its truth found by a jury, and that provision has been treated as self-executing since the 1870s. The Legislature also built a detailed removal process for county officers generally in chapter 87 of the Local Government Code (petition, citation, jury trial, and appeal). But the county auditor is different. The auditor's office is created by statute and the auditor is appointed by the district judges (section 84.002), and the Legislature wrote a separate, bare-bones removal provision just for auditors in section 84.009, which allows removal "after due investigation by the district judges" if official misconduct "is proven," but says nothing about procedure. The AG noted that whether chapter 87's procedures carry over to auditor removals appeared to be a question of first impression.

Working through the specific questions, the AG reached four conclusions. First, removal of the auditor rests within the sole discretion of the district judges. The AG drew an analogy to chapter 87, where a judge has unreviewable discretion whether to even issue a citation to start the process, and to the constitutional text saying officers "may be removed" by the judges, plus a 1934 case holding that while a jury finds the facts, the power to remove in response rests with the judge's discretion. Second, that discretion is still reviewable: a party to a general removal action can appeal under section 87.019, and even under section 84.009, which has no built-in appeal, a court could step in for abuse of discretion through mandamus. Third, the auditor is entitled to due process, meaning written notice of the possible removal and some forum to be heard, because an officer's interest in the position is a recognizable interest for procedural-due-process purposes and the constitution itself requires a written allegation tested by fact-finding. Fourth, the judges must conduct their own "due investigation," but nothing stops them from also considering an independent investigative report the county had commissioned, as long as their own inquiry is formal, systematic, and adequate. The AG added that because chapter 84 does not define "official misconduct," the judges may use the definition in section 87.011(3), consistent with the office's earlier Opinion GA-0442.

Currency note

This opinion was issued in 2020. 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 opinion was written for a county attorney and the officials trying to respond to an employee's complaint about an auditor. For the district judges who appoint an auditor, the opinion said the removal decision was theirs to make in their discretion, but that they had to do their own investigation and could not simply rubber-stamp a removal. For the county, the opinion meant an outside investigator's report could be part of the record the judges considered, so the money spent on an independent investigation was not wasted, though it could not substitute entirely for the judges' own inquiry. For the auditor facing possible removal, the opinion meant a right to written notice and a chance to be heard, even though the auditor-specific statute spelled out no formal hearing. And for anyone unhappy with the outcome, the opinion identified the review routes: a statutory appeal in the general removal track, or mandamus for abuse of discretion.

Common questions

Q: Who has the power to remove a Texas county auditor?
A: The district judges who appoint the auditor. The AG concluded that removal rests within their sole discretion under Local Government Code section 84.009, consistent with the Texas Constitution's grant of removal power to district judges.

Q: Does the auditor get notice and a hearing?
A: The AG said yes in substance. Even though section 84.009 spells out no procedure, the AG read the constitution and due-process cases to require written notice of possible removal and some forum in which the auditor can be heard by those finding the facts.

Q: Can the judges rely on an outside investigator's report?
A: They can consider it, but they cannot rely on it alone. Section 84.009 requires "due investigation by the district judges" themselves, so the judges must conduct their own formal, systematic inquiry, and may consider a county-commissioned report as part of it.

Q: Is the judges' removal decision reviewable?
A: Yes. The AG identified two routes: an appeal of the final judgment under section 87.019 in the general removal process, and, even under the auditor-specific statute, court review for abuse of discretion through a mandamus action.

Q: What counts as "official misconduct" for an auditor?
A: Chapter 84 does not define it, so the AG said the judges may use the definition in section 87.011(3): intentional, unlawful behavior relating to official duties, including an intentional or corrupt failure to perform a legal duty.

Background and statutory framework

Texas county officers can be removed for official misconduct under two overlapping bodies of law. The constitutional source is article V, section 24, which empowers district judges to remove county officers on a written charge whose truth is found by a jury, a provision the Texas Supreme Court treated as self-executing in Trigg v. State (1878). The statutory source for officers generally is chapter 87 of the Local Government Code (sections 87.011 through 87.019), which sets up removal by petition, citation, jury trial, and appeal, and which in section 87.011(3) defines "official misconduct." County auditors sit outside that general scheme in one respect: the auditor is created and appointed by statute (section 84.002, appointment by district judges) and has a dedicated removal provision in section 84.009 that authorizes removal after the appointing district judges' "due investigation" but supplies no procedure. The AG filled that procedural gap using constitutional due-process principles drawn from Tarrant Cnty. v. Ashmore and Guerrero v. Refugio Cnty. (an officer's interest in the position triggers notice and an opportunity to be heard), the discretion principle from State ex rel. Hale v. O'Meara (jury finds facts, judge exercises discretion to remove), and ordinary tools of statutory construction (consulting dictionaries for undefined terms like "due" and "investigation," as in Fort Worth Transp. Auth. v. Rodriguez). It also leaned on its own prior Opinion GA-0442 (2006) for the points that judges retain discretion even after misconduct is shown and may borrow the chapter 87 definition of official misconduct.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. V, § 24 (removal of county officers by district judges)
• Tex. Loc. Gov't Code § 84.009 (removal of a county auditor); § 84.002 (appointment of a county auditor)
• Tex. Loc. Gov't Code §§ 87.011–.019 (removal of county officers by petition and trial); § 87.011(3) (definition of official misconduct); § 87.019 (appeal)

Key cases:

• Trigg v. State, 49 Tex. 645 (1878) (article V, section 24 is self-executing)
• State ex rel. Hale v. O'Meara, 74 S.W.2d 146 (Tex. App.—San Antonio 1934, no writ) (jury finds facts; judge's discretion to remove)
• Tarrant Cnty. v. Ashmore, 635 S.W.2d 417 (Tex. 1982) (officer's interest in position triggers procedural due process)
• Guerrero v. Refugio Cnty., 946 S.W.2d 558 (Tex. App.—Corpus Christi 1997, no writ) (due process in the county auditor context)

Related opinion:

• Tex. Att'y Gen. Op. No. GA-0442 (2006) (judges' discretion to prosecute removal; borrowing the chapter 87 definition of official misconduct)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0345
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0345.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 16, 2020

The Honorable Scott R. Peal
Chambers County Attorney
Post Office Box 1200
Anahuac, Texas 77514

Opinion No. KP-0345

Re: Authority to remove a county auditor and procedure to do so (RQ-0359-KP)

Dear Mr. Peal:

You tell us that Chambers County (the "County") received a complaint from a county employee regarding the behavior of the county auditor.¹ You relay that all concerned parties seek guidance "in order to fully and properly address the aggrieved employee's complaint." Request Letter at 3. You seek particular guidance regarding the procedural aspects of a statutory provision governing removal of a county auditor in the event of official misconduct. Id. at 1–2 (referencing Local Government Code section 84.009). Before addressing your specific questions, we consider the overall framework governing the removal of county officers.

Article V, section 24 of the Texas Constitution authorizes the removal of certain named officers, not including the auditor, as well as "other county officers" by district judges for official misconduct and other causes, upon the cause "being set forth in writing and the finding of its truth by a jury." TEX. CONST. art. V, § 24. This provision, in place since 1876, is self-executing. See Trigg v. State, 49 Tex. 645, 652–53 (1878). Nonetheless, the Legislature enacted a statutory removal process for county officers in subchapter B of chapter 87 of the Local Government Code. See generally TEX. LOC. GOV'T CODE §§ 87.011–.019 (Removal by Petition and Trial). Chapter 87 authorizes the removal of a county officer for official misconduct and other causes by petition to the district judge, a formal citation on the officer, and a trial by jury, with the right to appeal the court's final judgment. See id. §§ 87.015 (petition), .016 (citation), .018 (trial), .019 (appeal). Officers subject to removal by petition and trial under chapter 87 include fourteen named officers, not including the county auditor, as well as "a county officer, not otherwise named by [section 87.012], whose office is created under the constitution or other law of this state." Id. § 87.012(15). The office of county auditor is created by statute. See id. § 84.002 (providing for the appointment of a county auditor by district judges).

But in providing for the appointment of a county auditor, the Legislature also enacted a removal provision that applies specifically to the county auditor. Subsection 84.009(a)(1) of the Local Government Code authorizes the removal of "[a] county auditor . . . if, after due investigation by the district judges who appointed the auditor, it is proven that the auditor . . . has committed official misconduct." Id. § 84.009(a)(1). Unlike the general provisions governing county officers in chapter 87, section 84.009 contains no provisions governing the procedural aspects of removal. The question whether the procedural aspects of the general removal statutes apply to the county auditor appears to be one of first impression. See 36 David B. Brooks, Texas Practice Series, County and Special District Law § 19.5 (acknowledging the lack of judicial or other guidance on the applicability of general county officer removal provisions to the county auditor). Against this background, we address your specific questions.

We first address whether the removal of the county auditor rests "within the sole discretion" of the district judges.² Request Letter at 1, 2. The general removal provisions in chapter 87 of the Local Government Code begin the process with the filing of a petition setting forth the alleged grounds for removal in a district court of the county where the officer resides, addressed to the district judge. TEX. LOC. GOV'T CODE § 87.015(a)(1), (c). The person filing the petition must then apply to the district judge for an order of citation to be served on the officer. Id. § 87.016(a). The district judge, at his or her discretion, may issue the order for citation or refuse to do so, a decision from which "[t]he person may not take an appeal or writ of error." Id. § 87.016(c). Thus, the initial decision whether to proceed with fact finding at all under chapter 87 rests solely with the district judge with whom the petition is filed. Similarly, the county auditor removal provision in section 84.009 incorporates an initial level of discretion by district judges by requiring that any proof made that the county auditor has committed official misconduct occur "after due investigation by the district judges."³ Id. § 84.009(a)(1) (emphasis added). If district judges do not conduct an investigation under section 84.009, there can be no further action resulting in removal. On the back end of the process, "the power to find facts" pursuant to article V, section 24 of the Texas Constitution rests with a jury, but "the power to remove [an officer], in response to such findings, rests within the discretion of the judge." State ex rel. Hale v. O'Meara, 74 S.W.2d 146, 147 (Tex. App.—San Antonio 1934, no writ). The discretionary language of the constitutional removal provision supports this view. See TEX. CONST. art. V, § 24 ("county officers . . . may be removed by the Judges of the District Courts") (emphasis added). Thus, a court would likely conclude that the removal of the county auditor rests within the sole discretion of the district judges. However, under the general removal provisions "[e]ither party to a removal action may appeal the final judgment to the court of appeals in the manner provided for other civil cases." TEX. LOC. GOV'T CODE § 87.019(a). And while the county auditor removal provision, section 84.009, establishes no administrative procedure to appeal the district judges' decision, that does not foreclose the possibility of court review under certain circumstances, such as a mandamus action for abuse of discretion.

Next, we address whether the auditor is entitled to any form of due process, such as a public hearing, in connection with the removal process. Request Letter at 1, 2. The general removal provisions for county officers include a written citation and a trial by jury. See TEX. LOC. GOV'T CODE §§ 87.016(d), .018(a). The county auditor removal provision, section 84.009, contains no similar provisions. But "[a]n officer's interest in his elected position, though not 'property' in the conventional sense, is a recognizable interest for purposes of procedural due process analysis." Tarrant Cnty. v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982); see also Guerrero v. Refugio Cnty., 946 S.W.2d 558, 571 (Tex. App.—Corpus Christi 1997, no writ) (applying procedural due process analysis in the context of a county auditor), disapproved of on other grounds by NME Hosps., Inc. v. Rennels, 994 S.W.2d 142 (Tex. 1999). "At a very basic level, deprivation of a protected interest requires notice and an opportunity to be heard." Tarrant Cnty., 635 S.W.2d at 423 (footnote omitted). The type of notice and hearing required, however, depends on the facts of the situation. Id. Here, the constitutional removal provision requires that an allegation of official misconduct be "set forth in writing" and that its truth be found "by a jury." TEX. CONST. art. V, § 24. Thus, a court would likely conclude that a county auditor is entitled to written notice of possible removal and some type of forum in which the auditor may be heard by those conducting the fact-finding into the allegation underlying that removal.

You also ask about a report prepared by a third-party investigator retained by the County to conduct an independent investigation into the allegation. Request Letter at 1. You question whether the district judges may consider this report, which summarizes the facts discovered, "as evidence supporting any decision to remove the auditor for official misconduct" pursuant to section 84.009 "as opposed to conducting its own investigation." Id. at 1, 2. By its plain terms, subsection 84.009(a) authorizes removal only after "due investigation by the district judges." TEX. LOC. GOV'T CODE § 84.009(a) (emphasis added). Thus, the district judges must perform some level of investigation themselves. However, the statute does not define a "due investigation" nor specify the manner of its conduct. The term "due" means "of the proper quality or extent; adequate." NEW OXFORD AM. DICTIONARY 535–36 (3d ed. 2010); see also Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018) (courts typically first consult dictionary definitions in determining the plain meaning of undefined words in a statute). An "investigation" is "a formal inquiry or systematic study." NEW OXFORD AM. DICTIONARY 914 (3d ed. 2010) (also defining the verb "investigate" as "carry[ing] out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth"). To "prove" something means "[t]o establish or make certain; to establish the truth of (a fact or hypothesis) by satisfactory evidence." BLACK'S LAW DICTIONARY 1420 (10th ed. 2014). Provided the district judges inquire into the facts in a formal, systematic, and appropriate manner, subsection 84.009(a)(1) does not preclude them from considering an independent investigative report procured by the County. See Tex. Att'y Gen. Op. No. GA-0442 (2006) at 3 (noting the discretion of the district judges to prosecute the auditor's removal even after establishing that the auditor committed official misconduct).

Finally, you ask whether the reference to official misconduct in chapter 84 of the Local Government Code, where the term is undefined, "is the same as or different from the definition of official misconduct" in chapter 87 of that code. Request Letter at 1, 2. Section 87.011 defines "official misconduct" as "intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law." TEX. LOC. GOV'T CODE § 87.011(3). This office previously addressed whether behavior constituting official misconduct according to subsection 87.011(3) was also "official misconduct" under section 84.009. See Tex. Att'y Gen. Op. No. GA-0442 (2006) at 2. Opinion GA-0442 concluded that district judges acting pursuant to section 84.009 could consider the elements of the offense of official misconduct as articulated in subsection 87.011(3). Id. at 2–3. Thus, district judges considering the question of official misconduct under section 84.009 of the Local Government Code may rely on the definition of official misconduct in subsection 87.011(3) of that code.

S U M M A R Y

A court would likely conclude that the removal of a county auditor rests within the sole discretion of the district judges. However, two avenues exist for judicial review of that decision. Pursuant to section 87.019 of the Local Government Code, applicable to county officers generally, a party to a removal action may appeal the final judgment to the court of appeals. Section 84.009 of that code, applicable to county auditors exclusively, establishes no administrative procedure to appeal the district judges' decision, but that does not foreclose the possibility of court review under certain circumstances, such as a mandamus action for abuse of discretion.

A court would likely conclude that a county auditor is entitled to written notice of possible removal and some type of forum in which the auditor may be heard by those conducting the fact-finding into the allegation underlying that removal.

Provided the district judges inquire into the facts in a formal, systematic, and appropriate manner, subsection 84.009(a)(1) does not preclude them from considering an independent investigative report procured by the county.

Judges considering the question of official misconduct under section 84.009 of the Local Government Code may rely on the definition of official misconduct in subsection 87.011(3) of that code.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff
Acting Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee