Texas Attorney General Opinion: JC-55 Page: 4 of 6
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The Honorable Michael P. Fleming - Page 4
Article 2919g-1 requires the Department to reimburse the county only for the county
auditor's first audit of Department funds and not for subsequent audits. Section 2 of article 2919g-1
provided that the county auditor "shall, as soon as practicable, audit all such books, accounts,
reports, vouchers and other records of the county department of education from the effective date
of this Act back to the last preceding audit made . . . by a county auditor" and required the
department to reimburse the auditor "for all expenses incurred in performing the first audit." Act
of Apr. 23, 1963, 58th Leg., R.S., ch. 87, 1963 Tex. Gen. Laws 145, 146. The statute was silent as
to reimbursement for subsequent audits. The legislature may have decided that the first audit would
make an unusual demand on the resources of the auditor's office, so that the Department should
reimburse the auditor for that, but that subsequent audits would be routine business for the county
auditor and not subject to additional compensation.
If performing the audit served a legitimate public purpose of the county, it would not be a
gratuitous transfer of public funds barred by article III, section 52. See Edgewood Indep. Sch. Dist.,
917 S.W.2d at 740. Attorney General Letter Opinion No. 93-83, however, found no county interests
in auditing the Department that would support the transfer of valuable services. For example, it
pointed out that the Department was a political entity distinct from Harris County and not subject
to the control of the Commissioners Court of Harris County. Tex. Att'y Gen. LO-93-83, at 3; see
TEX. EDUC. CODE ANN. tit. 2 app. 17.21(a) (Vernon 1996) (county board of education shall
constitute a body corporate, may acquire and hold real and personal property, sue and be sued, and
receive bequests, donations, and other funds). It also noted that Harris County and the Harris County
Department of Education occupied the same territory, stating that this relationship did not give the
county an interest in the Department's business. Tex. Att'y Gen. LO-93-83, at 3. On
reconsideration, however, we have determined that the county has legitimate interests in the
department not addressed in Attorney General Letter Opinion No. 93-83.
County officials, particularly the county judge, have historically had substantial authority
over school district affairs. 36 DAVID B. BROOKS, COUNTY AND SPECIAL DISTRICT LAW 30.1
(Texas Practice 1989). The county's statutory authority in the area of education has been
significantly reduced, and in Harris County, much of the remaining county authority is exercised by
the Department. See Tex. Att'y Gen. Op. No. V-51 (1947) at 3 (county school trustees vested with
certain duties formerly performed by commissioners court). The title to any school property
belonging to the county, which had been vested in the county judge and his successors in office,
"shall vest in the county school trustees or the county board of education." TEX. EDUC. CODE ANN.
tit. 2 app. 17.22 (Vernon 1996). The county school trustees or county boards of education are
authorized by section 17.31 (a) of the Education Code to "perform any ... act consistent with law
for the promotion of education in the county." Id. 17.31 (emphasis added).
The county and the Department are both involved in handling funds that go to the public
schools in the county. Funds received from the Central Education Agency are placed in the county
treasury, apportioned to school districts in the county by the county school superintendent, and paid
out to the school districts with the approval of the county superintendent. Id. 17.73. The county
depository shall "secure and handle" funds acquired through the operation of the county unit system
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-55, text, May 26, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274364/m1/4/?q=%221999%22: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.