Agan v. Commissioners Court of Titus County

• Decision Date: 29 May 1996
• Docket Number: No. 06-95-00092-CV,06-95-00092-CV
• Parties: Cynthia AGAN, County Treasurer of Titus County, Texas, Appellant, v. COMMISSIONERS COURT OF TITUS COUNTY, Texas and Carl Johnson, County Auditor, Appellees.
• Court: Texas Court of Appeals

Page 640

922 S.W.2d 640

Cynthia AGAN, County Treasurer of Titus County, Texas, Appellant, v. COMMISSIONERS COURT OF TITUS COUNTY, Texas and Carl Johnson, County Auditor, Appellees.

No. 06-95-00092-CV.

Court of Appeals of Texas,

Texarkana.

Submitted Jan. 9, 1996.

Decided May 1, 1996.

Rehearing Overruled May 29, 1996.

Gary Shaver, Harbour, Kenley, Boyland, Smith, Longview, for appellant.

Robert W. Weber, Atchley, Russell, Waldrop, Hlavinka, Texarkana, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Cynthia Agan, County Treasurer of Titus County, appeals from a summary judgment rendered in favor of the Titus County Commissioners Court. The commissioners court had removed duties involving computation of county payroll from the office of the county treasurer and assigned those duties, along with the employee performing those duties, to the county auditor's office. Agan filed a suit for declaratory judgment challenging this reassignment. The trial court upheld this action and granted the commissioners' motion for summary judgment.

Agan contends that the trial court erred by granting the appellees' motion for summary judgment and by denying her own motion for summary judgment. In a cross-point of error, the commissioners court contends that the trial court abused its discretion by denying their claim against Agan for attorney's fees.

Cynthia Agan has been the Titus County Treasurer since November of 1978. In November of 1978, the county payroll was prepared, verified, and distributed by the county clerk's office. The county treasurer during that era only signed the checks. The county clerk's office continued to perform these duties until the early 1980s when the county treasurer and the county auditor began to jointly perform them.

In 1987, Titus County hired an assistant county treasurer whose primary duty was preparing the county payroll. Preparing the county payroll was then an exclusive function of the office of the county treasurer.

In March of 1994, the commissioners court voted to combine the job of payroll clerk and accounts payable clerk and assign this employee to the county auditor's office. Preparing the county payroll then became a duty of the county auditor's office. The county treasurer retains the duties of verifying, signing, and disbursing the county payroll checks.

Agan brought this action asking the court (1) to declare that the commissioners' action removing the payroll functions from her office was illegal and (2) to order the payroll function transferred back to her office. The trial court granted the commissioners' motion for summary judgment, finding no legal prohibition against placing the payroll duties in the auditor's office.

Agan first contends that the trial court erred in granting summary judgment for the appellee. Summary judgment is proper when no genuine issue exists on any material fact and the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c). The Texas Supreme Court has determined that (i) the movant for summary judgment has the burden of showing the trial court that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, (ii) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true, and (iii) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

An order denying summary judgment is generally not appealable. McLemore v. Pacific Southwest Bank, FSB, 872 S.W.2d 286, 289 (Tex.App.--Texarkana 1994, writ dism'd by agr.), citing Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). An exception to this rule exists when both parties file motions for summary judgment and the court grants one and overrules the other. McLemore, 872 S.W.2d at 289, citing Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). When, as in this case, both parties have moved for summary judgment, we review all of the summary judgment evidence supporting both motions before deciding whether either of the motions should have been granted. Villarreal v. Laredo Nat'l Bank, 677 S.W.2d 600, 605 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.).

Each party must clearly prove its right to judgment as a matter of law, and neither party may prevail simply because the other party failed to make such proof. Board of Adjustment of Dallas v. Patel, 887 S.W.2d 90 (Tex.App.--Texarkana 1994, writ denied); James v. Hitchcock Independent School Dist., 742 S.W.2d 701 (Tex.App.--Houston [1st Dist.] 1987, writ denied). The proper disposition on appeal is for the appellate court to render judgment for the party whose motion should have been granted. McLemore, 872 S.W.2d at 289.

In this case, the facts are uncontroverted. The sole issue to be decided is whether the trial court correctly interpreted the law governing the commissioners court and its power to revise the duties of the county treasurer. The district court has supervisory power over a commissioners court that may be invoked only when the commissioners have acted beyond their jurisdiction or clearly abused the discretion conferred on the court by law. Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex.1992). When an official exercises discretion in such a manner as to conflict with the Texas Constitution, there is an abuse of discretion. Id.

The Titus County Commissioners Court voted to "combine duties of County payroll, the insurance program, and the personnel responsibilities with the duties of [the county auditor] monitoring and receiving purchase orders and their payment." Thus, the county auditor became responsible for preparing the payroll, administering the county employees' insurance program, and calculating and preparing reports for Social Security deductions from employees' pay. The county treasurer's only remaining responsibility in regard to payroll is now to approve, sign, and distribute the checks.

The position of county treasurer is created by Article 16, section 44(a) of the Texas Constitution.

Except as otherwise provided by this section, the Legislature shall prescribe the duties and provide for the election by the qualified voters of each county in this State, of a County Treasurer and a County Surveyor, who shall have an office at the county seat, and hold their office for four years, and until their successors are qualified; and shall have such compensation as may be provided by law. ¹

The commissioners court argues that it is a body that is at least quasi-legislative in nature, thus the constitutional provision directing "the Legislature to prescribe the duties of" the office permits the Court to prescribe the duties of the treasurer. Counties are subdivisions of the state. They are under the continuous control and domination, within constitutional bounds, of the Legislature. See Orndorff v. State ex rel. McGill, 108 S.W.2d 206, 210 (Tex.Civ.App.--El Paso 1937, writ ref'd). Counties are subject to the legislative will. Limestone County v. Robbins, 120 Tex. 341, 38 S.W.2d 580, 584 (1931).

The phrase the Legislature in the Texas Constitution means just that and no more. The mere fact that a body acts in some situations in a legislative role does not make that body "the Legislature." ² There is no authority for considering any quasi-legislative body as being "the Legislature," and we shall not strain the plain reading of the Constitution in order to reach that conclusion.

Duties of the county treasurer are prescribed by the Texas Legislature in the Local Government Code, Chapter 113. In general, this chapter provides that the county treasurer is the chief custodian of county funds, keeps an account of debts due to and owed by the county, and receives all money belonging to the county. The chapter sets out specific classes of accounts in which the receipts are to be maintained and provides specific direction about the procedures to be followed in so doing. TEX.LOC.GOV'T CODE ANN. § 113.041(a) (Vernon 1988) specifically provides that "[t]he county treasurer shall disburse the money belonging to the county and shall pay and apply the money as required by law and as the commissioners court may require or direct, not inconsistent with law." Other sections provide that the county treasurer is to keep records registering each claim against the county and providing the procedure to be followed in paying those claims. The county auditor is to countersign checks or warrants to validate them as proper items of expenditure (except for jury checks), and the auditor's approval of claims and bills for payment is a prerequisite to their payment. TEX.LOC.GOV'T CODE ANN. § 113.064(a) (Vernon 1988); SEE ALSO 35 DAVID B. BROOKS, COUNTY AND SPECIAL DISTRICT LAW § 16 (Texas Practice 1989).

Sections 112.001-.054 of the Local Government Code provide generally that the county auditor's function is to keep complete sets of records for the county's transactions, maintain accounts for the officials as required by law, and adopt and enforce regulations for collection of revenue due to the county. TEX.LOC.GOV'T CODE ANN. §§ 112.001-.054 (Vernon 1988 & Supp.1996); see 35 DAVID B. BROOKS, COUNTY AND SPECIAL DISTRICT LAW § 19 (Texas Practice 1989).

The first question in this case is whether any legislative enactment assigns the duty of preparing a county payroll to the county treasurer. The further question is whether those duties are implicitly placed by the Constitution or enabling statutory authority with the county treasurer, and thus cannot be shifted by the commissioners court to some other official. In reviewing this question, we are mindful that a commissioners court cannot attempt to restrict or abolish a constitutionally established office by refusing to allow or by preventing the elected official from performing those duties required...