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County officials consider legal opinions
by Joe Baker
Mar 28, 2013 | 1120 views | 0 0 comments | 8 8 recommendations | email to a friend | print
KARNES CITY – Karnes County Judge Barbara Shaw read a lengthy legal opinion during the March 12 meeting of Karnes County’s Commissioners Court in response to questions about the legality of relocating Commissioners Court and other local courts and offices to the Karnes County Offices on the Square.

The opinion was written by Ross Fischer, an attorney working for Denton, Navarro, Rocha, and Bernal, acting as special legal counsel to Karnes County.

The opinion said that the minutes from the Jan. 31 meeting reflected that the court voted to move the county judge’s staff and office, Commissioners Court proceedings, County Court, Probate Court and Juvenile Court to the annex.

According to the county clerk’s office, however, the amended and corrected minutes from the same meeting show that the court only approved moving the county judge’s office with no mention of relocating the four local courts.

The opinion continued justifying the emergency expenditures associated with moving the offices.

“This is indeed an unusual condition that could have not been reasonably anticipated during last year’s budget process,” Fischer said in the opinion.

Fischer’s opinion continued saying that the county auditor lacks the independent legal authority to refuse to abide by a Commissioners Court emergency budget amendment, simply because the auditor does not agree with the court.

The opinion did offer some advice to the court, in regard to emergency budget amendments.

“To withstand judicial scrutiny, the Commissioners Court should make express findings clearly setting forth the reasons for the emergency amendment,” The opinion stated. “That way if anyone ever challenges the expenditures in court, there will be clear documentation setting forth the unforeseen and unusual conditions, the grave public necessity, and the reasons they could not have been reasonably included in the original budget.”

After having heard the legal opinion, a resolution was read to authorize and ratify an emergency amendment of the county budget, finding that the legal requirements have been met, and ratifying all previous acts in accordance with such findings.

Commissioner Shelby Dupnik made a motion approving the resolution which was seconded by Commissioner Pete Jauer.

Commissioner James Rosales questioned the wording the resolution calling for ratification of all previous acts instead of just the expenditures in moving the county attorney’s office.

The resolution passed on a 3-1 vote with Dupnik, Jauer and Shaw voting in favor while Rosales voted against.

Judge Shaw commented on an agenda item related to amending or correcting minutes of Commissioners Court meetings.

“There has been a big hullabaloo about the language I guess that was made about moving the offices and the minutes were amended,” Shaw said. “I don’t want to get into an argument over what is supposed to be done or how it is supposed to be done, but if Commissioners Court’s minutes are amended, they have to come through the court, not through a specific person or anything.”

Shaw then began to read another opinion from Ross Fischer related to this when County Clerk Carol Swize spoke up.

“Before I amended the minutes, I also called TAC (Texas Association of Counties), which is who we call for legal counsel,” Swize said. “The attorney that I spoke to said that when the statutes were changed that the minutes don’t have to be approved any longer by Commissioners Court, then amendments or corrections don’t have to be approved unless it is just the wording – like, if you are changing the speed limit to 30 and the motion was made to change it to 40, then you need to go back and change that to 30, – you need to approve that but the minutes don’t have to be approved any longer and according to TAC, nor do the corrections or amendments as long as you are sending out a notice to someone that they have been, as a courtesy.”

“I talked to Jim Allison about that, and he said he didn’t know why they told you that,” Shaw responded. “When I talked to Jim, Jim said, ‘No, it needs to go through court any time minutes are amended.’”

“Is there a statute that says that?” Swize asked.

“I have this opinion, and will read it, if I get a motion to waive it,” Shaw said.

The court then approved waiving its attorney-client privilege to read the opinion.

“Commissioners Courts possess the inherent power to correct and amend such records,” the opinion stated. “As such, records can be altered or changed only through the order of the court, itself.”

“I did talk to the county attorney,” Swize said. “I will ask the county attorney if he would get an opinion from the attorney general’s office on that, as well. Just because the local government code does say that they no longer have to be approved by court, as a courtesy and a tradition, if you want to continue that, that’s fine, but it only has to be attested to. If I am attesting to the minutes, and I make a mistake, and then I make the amendment correction, which did say ‘amendment correction’ and I attest to that, because if you are approving something that is not correct, or that I didn’t write – which is what I did – I know it doesn’t negate anything that happened in that meeting, it doesn’t change any of the moves, or anything, it is just that, for two years I have been consistent in how I have done the minutes and I want to make sure that I stay with the consistency. I made an error in that set of minutes in a motion that was made and I went back to correct that motion to remain consistent throughout the minutes.”

“Maybe it would be best if we just put the reading of the minutes back on the agenda,” Shaw said. “I will just start putting them back on here.”

County Attorney Herb Hancock said he would seek an opinion from the attorney general’s office, but it would likely take a while.

Hancock told The Karnes Countywide in an interview last week that it would be necessary for the court to vote to change the location where Commissioners Court meets.

“The commissioners can amend the minutes if necessary to reflect what their intent was on that day,” Hancock said.

Hancock said that even if the commissioner’s motion did not include moving the courts in addition to the office of the county judge, the court could claim that they did act to do so as it was their intent to do so because of the wording of the agenda item itself.

“It is not the best way to make the motion,” Hancock said. “And probably, if I were making a recommendation to the court, I would recommend that we go back and do something like an amendment,” Hancock said.

Hancock explained that in district and county court cases, there is a procedure for correction to reflect the original intent of the court.

“I am of the opinion that Commissioners Court can do the same thing, because they are a court of record, for all practical purposed,” Hancock said.

Hancock said he would recommend having review, amendment, correction and approval of the meeting minutes as a routine part of their regular meetings.

“I don’t know how we are going to get around doing that, because things like this are going to pop up from time to time,” Hancock said.
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