Crider v. Cox

• Citation: 960 S.W.2d 703
• Decision Date: 30 April 1997
• Docket Number: No. 12-95-00281-CV,12-95-00281-CV
• Parties: Robert L. CRIDER, Appellant, v. Mary COX, Auditor of Anderson County, et al., Appellees.
• Court: Texas Court of Appeals

Page 703

960 S.W.2d 703

Robert L. CRIDER, Appellant, v. Mary COX, Auditor of Anderson County, et al., Appellees.

No. 12-95-00281-CV.

Court of Appeals of Texas Tyler.

April 30, 1997.

Rehearing Overruled June 30, 1997.

Robert Crider, Austin, for appellant.

Robert Wayne Gage, Fairfield, for appellees.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

RAMEY, Chief Justice.

Austin attorney Robert L. Crider ("Crider"), Plaintiff below, appeals from a trial court's denial of his petition for mandamus to require Anderson County Auditor, Mary Cox, and her successor, Melissa Woodard (together "Auditor"), Defendants below, to audit, approve, issue and sign a county check paying him for his legal services in representing Anderson County Judge, John Ballard McDonald ("McDonald"). ¹ McDonald had previously been indicted on six misdemeanor counts of attempting to secure the dismissal of two persons' traffic tickets; the cases were pending in his court. Crider also complains that the trial court erroneously denied his Motion for Summary Judgment for mandamus relief. We will affirm the trial court's judgment.

McDonald retained Crider, his uncle, to represent him in the defense of these charges. ² Upon a trial of the criminal charges against McDonald, the Anderson County Court at Law decided in Crider's client's favor by quashing the indictment, ruling that Sec. 36.04 of the Penal Code was unconstitutionally vague and overbroad and that the indictment did not confer adequate notice for McDonald to prepare his defense.

Crider presented a bill for his legal services to McDonald six months later. The bill was then submitted to the Auditor for her approval. She did not approve it. Without the Auditor's approval, the claim was placed on the September 27, 1994 Commissioners Court agenda whereupon that Court unanimously voted to pay the bill, McDonald abstaining. Cox and Woodard have continued to refuse to approve Crider's bill on the grounds that the charges did not arise out of an act by McDonald performed in his capacity as Anderson County Judge or in which Anderson County had an interest and also because a contract for services between Crider and Anderson County would violate the nepotism statute, TEX.GOV'T CODE ANN. § 573.041 (Vernon 1988). Crider filed this mandamus proceeding on October 20, 1994 in the district court against the Auditor to compel her to audit and approve the bill and issue and sign a county check in payment of his claim. On January 13, 1995, the Commissioners Court voted to rescind the order that had approved payment of Crider's claim.

Counter Motions for Summary Judgment were filed by Crider and the Auditor. After the summary judgment issues were joined, the court by letter apprised the parties of his ruling; he expressed the intention to rule in favor of the Auditor and . . . . .

against Crider. The declaration of his ruling, as recited in the Judgment itself, stated:

The Court after examining the pleadings, briefs, and summary judgment evidence determines that Movants, Melisssa Woodard and Mary Cox, are entitled to summary judgment and the motion by Robert L. Crider for summary judgment should be denied. (Emphasis added.)

The decretal rulings in the Judgment, however, only declared the following:

IT IS WHEREFORE (sic) ORDERED that Relator, Robert L. Crider's, application for writ of mandamus against Melissa Woodard or Mary Cox, Auditor is denied. All relief requested and not expressly granted is denied.

No specific order is expressed in the Judgment as to the parties' motions for summary judgment, apart from the residual denial provision. The court's recitals preceding the decretal portions of the judgment do not determine the rights and interests of the parties. Rausheck v. Empire Life Insurance Co. of Amer., 507 S.W.2d 337, 339 (Tex.Civ.App.--Texarkana 1974, writ ref'd n.r.e.). Despite the court's stated intention to grant the Auditor's summary judgment motion, we conclude that it was not granted. Id. ³ Decretal provisions control. 5 R. MCDONALD, TEXAS CIVIL PRACTICE § 27.24(a) (rev.1992). Thus, the trial court's apparent intention to grant the Auditor's motion for summary judgment is not borne out by the trial court's judgment. The only rulings presented for our review are the trial court's specific denial of Crider's petition for mandamus and the denial of his summary judgment, there being no assignment that the trial court erred in failing to grant the Auditor's summary judgment.

In the Judgment, the trial court makes the following recitations:

It is the finding of this Court that the approval of the County Auditor of the relator's bill is jurisdictional and that any action taken by the Commissioner's Court without the Auditor's approval makes any ruling by the Commissioner's Court void.

All other matters discussed in both motions and briefs become moot with the non-jurisdictional finding.

Relator's remedy is to sue the County for the payment of his bill.

Subsequently, the trial court filed the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Mary Cox, Auditor of Anderson County, Texas did not approve the claim of Relator for Attorney's fees incurred in behalf of John Ballard McDonald prior to the claim being submitted to the Anderson County Court or at any other time, and further Mary Cox and her successor in office, Melissa Woodard, at no time approved said claim.

2. There are numerous, complicated, unresolved issues concerning the legality of the payment of the claim as submitted by Relator.

CONCLUSION OF LAW

1. The approval of Relator's claim by the Commissioner's Court, since it was not first approved by the County Auditor prior to submission is void.

2. The acts of Commissioner's Court in rescinding the approval of Relator's claim was valid.

3. The approval or disapproval of Relator's claim was a ministerial rather than a discretionary act on behalf of the Anderson County Auditor and her successor in office. The failure of the Anderson County Auditor and her successor in office to approve Relator's claim was not an abuse of discretion ..

4. Relator has an adequate remedy at law in that he may bring suit against Anderson County on his claim.

Crider assigns but one point of error. He generally asserts that the trial court erred in denying the mandamus and in failing to grant his motion for summary judgment. As subpoints, Crider charges that the court's various fact findings and conclusions of law were erroneous. This point of error is multifarious and may be disregarded. Clancy v. Zale Corp., 705 S.W.2d 820, 823-24 (Tex.App.Dallas 1986, writ ref' d n.r.e.). We will, however, construe the point as complaining about the lower court's denial of the mandamus and Crider's motion for summary judgment. His exception to the court's findings and conclusions is noted, but there is no complaint that the evidence is insufficient to support the findings. We do observe that the existence of disputed facts precludes mandamus. Dikeman v. Snell, 490 S.W.2d 183, 186-87 (Tex.1973).

The expressed rationale for the trial court's ruling is contained in the court's letter to counsel advising them of his decision, the Judgment, and the Findings of Fact and Conclusions of Law: approval of Crider's bill by the Auditor before the Commissioners Court vote considered the bill was a jurisdictional requisite; thus, the Commissioners Court's approval of the claim was void.

Several statutes are relevant. A claim, bill or account against the county may not be paid by the county until it has been examined and approved by the Auditor. TEX.LOC.GOV'T CODE ANN. § 113.064(a) (Vernon 1988). The Auditor must stamp her approval upon the bill. TEX.LOC.GOV'T CODE ANN. § 113.064(b) (Vernon 1988). Responsibility is imposed upon the county Auditor to strictly enforce the law governing county finances. TEX.LOC.GOV'T CODE ANN. § 112.006 (Vernon 1988). A claim against the county may not be approved by the Auditor unless it was incurred in accordance with the law. TEX.LOC.GOV'T CODE ANN. § 113.065 (Vernon 1988).

It is undisputed that the statutorily required approval of the bill was never given by the Auditor. 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 113.064(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 Commissioner's order. Id. The necessity of the Auditor's approval of the claim is acknowledged by Crider by his filing this mandamus action against the Auditor.

Crider argues that when the Auditor was initially presented with the bill in September 1994, she requested that the Commissioners Court make the decision on the approval of the claim. This fact is disputed. A County Auditor, however, is not authorized to delegate to another legal entity or office her responsibility to examine and approve, if appropriate, a claim. Smith v. Flack, 728 S.W.2d 784, 790 (Tex.Cr.App.1987). She must make an independent examination of each claim and approve it before the Commissioners Court may consider it. Id. For the same reason, we disagree with Crider's contention that the Auditor is bound by a 1990 resolution passed by the Anderson County Commissioners Court approving reimbursement for future legal services without the Auditor's approval. Id. We conclude that the trial court did not err in ruling that the Auditor's prior approval was...