Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
xay 14, 1982
MARK WHITE
Attorney General
Honorable James Warren Smith, Jr. Opinion No. MW--46?
Supreme Court Buildin County Attorney
P. 0. 80x 12546 Authority of county to
Frio County Re:
Justin. TX. 76711. 2546
5121A752501
P. 0. Box V reimburse county sheriff
Telex 9101674.1367 .Pearsall, Texas 78061 with public monies for
Telecopier 512/475-0266 personal loans Incurred in
conducting county-wide drug
investigations
1607 Mm St.. Sui\e1400
Dallar. TX. 75201.4709
2141742-6944 Dear Mr. Smith:
As we understand the facts relating to your request for an
A624 Alberta Ave.. Suite1M)
opinion, the sheriff of Frio County, with the approval of the Frio
El Paso. TX. 79905.2793
9151533.3464 County Commissioners Court, hired an undercover agent to Investigate
the traffic of drugs in the county. However, the county budget aLthe
time contained no funds to finance the operation insofar as the
1220 Dallas Ave.. Suile 202 purchase of drugs, and ocher expenditures, might be necessary to
Houston. TX. 77002.6966
successfully complete the undercover work. In order to allow the
7131650.0666
investigation to go forward, the sheriff personally provided almost
$16,000 to finance It, $14,000 of which was loaned to the sheriff
606 Broadway. Suite 312 expressly for that purpose by a locel bank.
LvbbOCk. TX. 79401.3479
5061747.5235
The operation ended successfully with a number of grand jury
indictments. You ask if the sheriff may be reimbursed by the county
4309 N. Tenth. Suite 8 for the money he personally expended on the project. If so, you ask
Mc~llen. TX. 76501.1665 if the county auditor may approve payment of the claim notwithstanding
5121662.4547 the absence of competitive bids as required by article 2368a. V.T.C.S.
200 Main Plaza. Suile 400 It is the duty of the sheriff to be a conservator of the peace In
San Antonio. TX. 762052797 his county, and to apprehend all offenders. Penal Code 52.17. The
5121225-4191 deployment of law enforcement officers within the county Is a matter
left to his discretion. Weber v. City of Sache. 591 S.W.2d 559 (Tex.
Civ. App. - Dallas 1979. no writ). Article 3899, V.T.C.S., provides
that each srlaried sheriff “shall be entitled and permitted to
purchase or charge to his county all reasonable expenses necessary in
the proper and legal conduct of his office.” And article 3912k,
V.T.C.S., authorizes the commissioners court of a county to “fix the
amount of compensstion, office expense, travel expense, and all other
allowances” for the sheriff . The commissioners court of the county is
therefore authorieed to allow such expenses If they are reasonably
p. 1638
Honorable James Warren Smith, Jr. - Page 2 o&k469
necessary for the proper performance of the sheriff’s duties. -See
Attorney General Opinion H-1250 (1978).
It has been suggested that the reimbursement of the sheriff in
these circumstances would constitute a violation of article III,
section 52 of the Texas Constitution, which prohibits the granting of
public money or thing of value in aid of or to any individual.
However, the reimbursement of a sheriff for personal funds used to
meet reasonable expenses necessary in the proper and legal conduct of
his office has never been considered Illegal. See Hardy v. Lubbock
County, 89 S.W.2d 243 (Tex. Civ. App. - Austin-35, no writ). In
Attorney General Opinion H-210 (1974), the director of the Texas
Department of Public Safety asked about providing “flash rolls” to
undercover agents for the purchase of evidence against narcotic
traffickers. There it was said. “The money is used to combat crime, a
proper public purpose.... The cost of ‘purchasing’ evidence under the
circumstances... is an expense of the agency and not the individual
expense of the employee acting for it. The Department should bear the
financial burden and risk -- not the employee.” See also Attorney
General Opinion H-1148 (1978) (county “flash money” fund).
If money was expended by the sheriff for a proper public purpose
in the proper discharge of his duty. the use of public funds to
reimburse him for the expenditures is not barred by article III.
section 52 of the constitution. Barrington v. Cokinos, 338 S.W.2d 133
(Tex. 1960). Nor is it necessarily a bar that, at the time the
sheriff spent the money, there was no county money budgeted for such
expenditures.
The budgetary process of Frio County is governed by article
689a-11, V.T.C.S. It specifies the time when then budget is to be
adopted each year and provides:
When the budget has been finally approved by the
Commissioners Court,... no expenditure of the
funds of the county .shall thereafter be made
except in strict compliance with the budget as
adopted by the Court. Except that emergency
expenditures, in case of grave public necessity,
to meet unusual and unforeseen conditions which
could not, by reasonably diligent thought and
attention, have been Included In the original
budget, may from time to time be authorized by the
Court as amendments to the original budget.
(Emphasis added).
The commissioners court can ratify expenditures that it might have
authorized originally. State v. Carnes; 106 S.W.2d 397 (Tex. Civ.
APP . - San Antonio 1937, no writ). -See Gussett v. Nueces County, 235
P. 1639
Honorable James Warren Smith, Jr. - Page 3 LMW-469)
S.W. 857 (Tex. Comm. App. 1921). If the commissioners c.‘urt concludes
that the sums spent by the sheriff were emergency expend::ures made at
a time of grave public necessity to meet unusual conditions which
could not have been reasonably foreseen in time to include them in the
original budget, it may, on its own motion, amend the budget to
provide for their payment by the county.
The budgetary amendment process could also be set in motion by
the sheriff himself if he requests a grievance committee hearing to
revise the budgeted amount of expenses or allowances for his office.
Section 2(d) of article 3912k, V.T.C.S., allows any elected county
officer who is aggrieved by the setting of his expenses or other
allowances by the coxsaissioners court to request such a hearing.
Assuming no deficit in county funds would result, a favorable
committee determination could effect the necessary budgetary change.
Neptune v. Renfro. 586 S.W.Zd 596 (Tex. Civ. App. - Austin 1979, no
writ) ; see also Jackson v. Leonard, 578 S.W.Zd 879 (Tex. Civ. App. -
Houston 114th Dist.] 1979, writ ref’d n.r.e.).
Article 2368a. V.T.C.S, about which you ask, restricts the power
of the coaxeissioners court to make contracts creating or imposing an
obligation or liability of any nature or character on the county
without first submitting the contract to competitive bids. Id. 52(a).
The reimbursement of the sheriff for necessary expenses incurred does
not involve a contractual obligation to the sheriff on the part of the
county. It involves a statutory duty to which the competitive bidding
statute is not applicable. The fact that part of the money used by
the sheriff was obtained from a personal bank loan does not alter the
situation. The repayment of the loan to the bank involves only a
personal obligation of the sheriff to the bank, and it is irrelevant
vhether any money reimbursed to him is (or will be) actually used for
that purpose by the sheriff. Whether he is entitled to be reimbursed
for the personal funds he expended is not dependent upon where he
obtained the funds, or what his personal obligations might be. -See
Attorney General Opinion V-1149 (1951).
Neither were the evidence “buys” true contractual transactions.
They merely exposed the “flash” money used by the sheriff to a risk of
loss -- much as sheriff’s vehicles are exposed to possible damage or
destruction when used in pursuit of law violators. The county never
became contractually obligated for the purchase price of the
contraband evidence, and was at all times legally entitled to recover
any county money paid to the person from whom it was “purchased.” See
14 Tex. Jur. III Contracts 9176, at 287; 1 Tex. Jur. III Topic Set-v=
No. 18, 56. Cf. V.T.C.S. art. 4476-15, §§5.03(b), 5.07(a)
(forfeitures); Penal Code 99.21(a) (public duty justification); City
of Fort Worth v. Reynolds, 190 S.W. 501 (Tex. Civ. App. - Port Worth
1916. writ ref’d w.o.m.) (illegal contract, constructive trust).
p. 1640
Honorable James Warren Smith. Jr. - Page 4 (flW-469)
SUMMARY
The Frio county Commissioners Court is
authorized to reimburse the sheriff for the
personal funds he used to meet reasonable expenses
of a narcotics investigation. The competitive
bidding statute is inapplicable.
Very truly yours.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison. Chairman
Jon Bible
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
p. 1641