Historically, counties were created by the sovereign power of the states to serve the states as administrative and judicial subdivisions. Thus, counties were created for the purpose of implementing the policies of the states. Counties, as specified in the states’ constitutions, are the creatures of their respective state legislatures and are subject to their control in plenary matters.
The county system in Texas is modeled on the county systems of the states from which the early Texans came. County Government is the most universal unit of local government in the United States and it has been extremely important in the South. Today, in the rural areas of Texas and across the country, county government is the most important unit of grassroots government available to the people.
County governments in Texas perform two basic functions: (1) they carry out the administrative and judicial responsibilities for the state and (2) they carry out local government responsibilities for county residents. The fact that Section 71.001 of the Local Government Code formally confers corporate status on Texas county governments does not mean that counties are municipal corporations nor is their status, scope of responsibility and power the same as that of cities, towns and villages. In the 1952 case of Harrison County vs. City of Marshall, 253 SW2d 67, the appeals court held: "A county has no power or duties except those which are clearly set forth and defined by the constitution and state statutes." Restated, county government is subject to the will of the legislature, modified only by the state constitution, the courts and the ordinary legislative process. From this it should be apparent that county offices are under the plenary control of the legislature with only constitutional and judicial control as exceptions.
In Texas, all counties, regardless of population or land areas, have exactly the same form of government except for minor differences in some urban counties where the state has allowed for additional offices and courts. Examples of these statutory offices are county auditor, road engineer, and county health officer. The organizational structure is defined specifically in the state constitution. Every county has exactly the same structure for its Commissioner Court. Each county is divided into four commissioner’s precincts. In each of these, the voters of that precinct elect one county commissioner. Voters of the entire county elect a county judge. The commissioners, so elected, with the County Judge as presiding officer, constitute the County Commissioners Court. Commissioners Courts have specific statutory powers but, in general, they have very limited legislative authority. The other major county offices provided for in the state constitution are county clerk, sheriff, county tax assessor-collector, and county treasurer. All constitutional offices are elective and have terms of 4 years. County statutory offices have different terms and methods of appointment.
The most important governing body of the county is the Commissioners Court. The county judge presides over the meetings of the Commissioners Court and sees that the meetings are carried on in an orderly manner. The Commissioners Court is not really a court, but is an administrative body for the conduct of county affairs. The judge does have the authority to hold in contempt those who try to disrupt the proceedings of the court in the conduct of its business. The court may ask the sheriff to maintain order and the sheriff must comply. The law requires the Commissioners Court to meet at least once each month in a regular term. Commissioners Court is not required to hold sessions or meetings more frequently than once every three months if county business does not require it. The day of the regular meeting of the Commissioners Court may now be any day of the week and is set by the Commissioners Court itself. The court can meet in special session at any time it so desires so long as the proper notice is given and there is the proper posting of such notice.
Any three members of the court may constitute a quorum for the transaction of all business with the exception of levying county taxes. Therefore, any three commissioners or the county judge and any two commissioners may transact most county business as a quorum when county taxes are being levied.
The main functions performed by the County Commissioners Court are:
The legal basis for the office of county judge rests in Article V, Sections 15-18, of the Texas Constitution: "There shall be established in each county in this state a County Court, which shall be a court of record; and there shall be elected in each county, by the qualified voters, a county judge, who shall be well informed in the law of the state; shall be a conservator of the peace; and shall hold office for four years, and until his successor shall be elected and qualified ..."
The county judge is the presiding officer of the Commissioners Court, which is the policy determining body of the county. The county judge is a voting member of the Commissioners Court although in many counties, by custom, the judge votes only in case of ties. A county judge in Texas is usually the judge of the County Criminal Court, County Civil Court, Probate Court and Juvenile Court. The county judge is also head of civil defense and disaster relief, county welfare, and in counties under 225,000 population the judge prepares the county budget along with the county auditor or county clerk.
As an administrative official, the county judge handles such widely varying matters as hearings for beer and wine license applications, hearings on admittance to state hospitals for the mentally ill and mentally challenged, juvenile work permits and temporary guardianships for special purposes. The judge is also responsible for calling elections, posting election notices, and for receiving and canvassing the election returns. The county judge has the same authority to take acknowledgments as a notary public and may perform marriages.
Each county in Texas is divided into four commissioner’s precincts. Each of the four commissioners is directly elected by the voters of their precinct. As a member of the Commissioners Court, each commissioner participates in all the decisions and work of that body. In most counties, the county commissioner is solely and directly responsible for the administration of the road and bridge program in his or her precinct, but today, with increased administrative responsibilities, a county commissioner is much more than a "road commissioner."
Duties of the district clerk in each county revolve around the District Court. Even though district courts are state offices, they have become an integral part of county government. In general, the District Court will hear serious criminal cases, important civil cases, and most cases dealing with juvenile and domestic relations. The role of the district clerk in supporting the District Court system is essential to its smooth operation. The district clerk is recorder, registrar and custodian of all court pleadings, instruments, and papers that are part of any District Court case. The district clerk is responsible for swearing and impaneling both petit and grand juries, recording verdicts, securing court records, maintaining dockets, and collecting filing fees. The district clerk’s office also issues writs, warrants, citations, executions, notices to show cause and other papers involved in the trying and disposition of many kinds of lawsuits.
The district clerk is also responsible for significant number of miscellaneous duties such as receiving and disbursing child support payments and accepting passport applications in counties where there is no local passport agency.
In counties with a population of less that 8,000, the office of district clerk is generally combined with the office of county clerk unless voters have authorized separate offices.
Additionally, the county clerk records security instruments, births and deaths, delayed birth certificates, assists injury selections, records livestock brands and marks, and issues and records marriage licenses. In most counties, the county clerk also conducts elections for the county.
The position of county constable is provided for in Article V, Section 18 of the Texas Constitution. Here it states that the qualified voters of each justice precinct, at each general election, shall elect a constable for such precinct for a term of four years. The number of constable in each county varies depending upon population. These peace officers are the first link in the county’s chain of law enforcement. Constables are the executive officers of the justice of the peace courts since they subpoena witnesses, act as bailiff, execute judgments and serve papers. In addition, they may perform patrol function and make criminal investigations.
In larger metropolitan counties the constable may also assist the county and district courts as well.
The county treasurer plays an important role in the fiscal operations of every county in Texas. The county treasurer is the chief custodian of county finances. Basic duties include, but are not limited to, receiving, keeping and accounting for, paying, applying, and disbursing all monies belonging to the county from whatever source derived according to law. Additional duties may include serving as ex-officio treasurer of any county levee districts; being responsible for original reconciliation and safekeeping of county bank accounts; serving as custodian of the sheriff's bail bond collaterals; serving as financial manager and coordinator of all revenue bonds, funds, including initial issuance, establishment of accounts, acceptance of original funds, payment of accounts; acting as agent for state reports and payments on certain accounts; and serving as facilitator for social security, county retirement, group health insurance, credit union, deferred compensation, and savings bonds deductions for county employees.
The main duties of the county tax assessor-collector are to assess and collect property taxes for the county; to issue certificates of title and license plates for motor vehicles and trailers; to issue voter registration applications and certificates; and to compile election poll lists. In some counties, the county tax assessor collector may also serve as the chief appraiser for the Central Appraisal District.
The county attorney is required to have a license to practice law. The main duties of the county attorney are to serve as legal advisor to county officers, and to represent the state in criminal cases in county and justice of the peace criminal courts. The county attorney works with law enforcement officers in the investigation and preparation of cases to be heard before the criminal county courts.
A justice of the peace is elected from each justice of the peace precinct. The number of precincts varies depending upon the population of the county. The main duty of a justice of the peace is to preside over the justice of the peace court. These courts have jurisdiction in criminal cases punishable by fine only. They also have jurisdiction of civil matters when the amount in controversy does not exceed $5,000. The Justice of the Peace Court also functions as a small claims court. The small claims court has concurrent jurisdiction with the justice court in actions by any person for the recovery of money in which the amount involved, exclusive of costs, does not exceed $5,000. A justice of the peace may serve as coroner except in those counties having a medical examiner. A justice of the peace issues warrants, conducts investigations and preliminary hearings and performs marriages. Periodic training is required to hold this office. However, in Texas a justice of the peace does not have to be an attorney.
The principal law enforcement officer in the county is the sheriff. The sheriff has jurisdiction over the entire county to prevent criminal actions and to arrest offenders. In counties with a population under 10,000 and where there has been no vote to separate the two offices, the sheriff may also be the tax assessor collector for the county. The sheriff acts as executive officer of the county and district courts, serving writs and subpoenas and processing lunacy warrants. The sheriff also is responsible for sending out jury duty summons. He or she has the authority to appoint deputies and is in charge of the county jail and the prisoners.
*Extension coordinator, V.G. Young Institute of County Government and member, State Bar of Texas; and Extension Specialist, V.G. Young Institute of County Government, The Texas A&M University System.