Untitled Texas Attorney General Opinion ( 1946 )

3C OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN QROVCRSELLERS ATIOINEY OmNRAL lion. C. Simmon8 - Page 2 “b’ith tNs increase in oifect the Officers Salarywouldb the end of 1947be overdrawn approxi- #lately $9,000.50 and no fundsavailable in the General Fund to supplement the SalaryFund. “Could this be a legal expendlt,ure, OF should the Court be required to keep the expenditures within the estimated receipts?n In answer to our letter requesting. additional Information, you sent us a copy of the following order8 ,“The State of Texas, -County of Henderson: “IOn this the 5th day of August AS. 1946 the Commissioners Court met in re,-@ar session and also re- sumed their duties as a Board of Zqualieation. “‘Anon~ other thlnge the following Foceodings were had to wit: Gn motion made by Commissioner Boatright md seconded by Conmissioner 2. D. Larron that salaries of County Officials be increased 255 of their present ml- arles and their de uties i;nd em lo ees salaries be in- creased 10s of the& present s&a&s, a vote was taken and same was paseed unanino~aly by the court to become effoctlve on September 1 1946. Tho Auditor was Instructed to amend the budget to t&at effect. The Court moved to ’ ;$;u~ as en Squall ration Board until Monday, August 12, z*~galn on August 26, 1946,order again passed to 'amnd,bxzdCet raisin:: mlaries as per order of Court passed hg. 5, 1946.'" The Comiosioncrsf Court mst find that the financial con- dltlon.of the county Is such as will permit the proposed Increase in salary, and must also find that the needs of such officers justify t,h; 2~: before the proposed increase mentioned In your Inquiry This dopartnent has repeatedly held that any‘increase of a QgUWy official authorleed by S. B. I-23, Acts c& ~$tta#&l;ture Reg. Scs, 1945 would be subject to the budge’ - -- $@a-ll V.1.C .S. 1 and that in order to rovlde for such*increaso, the co& budget would have to be amende iiin ' accordance with said budget 1a?:. In connection with the foregoing, we calJ. your attention to the following. In the case of Dsnc V. Davidson, 183, S .;i. 2d 195, (writ refused) the Court stated t he f ollowlng : Hon. C. Simon6 - ?aze 3 “The order of the Comissionere~ Court referred to in the stipulation is t!:at eet forth (insofar as naterial parts are concerned) in the forcpart of this opinion. Srlofly stated, the order deirlarus that (1) there exSat6 a neoescity’ for Gazeron Count to acquire a building in San Benito, (2) that the bui 1 ding owned by Itis. Jennie 3. 3011 is suitable for the County’a needs, (3) thct the price asked thsrefor is reasonable and fair, (4) that the. Count has current funds not othemise ap ropriated, suff 1 cient to purchase the property, (5 P that Yzs. Bell be’paui j37,5GO.30 by warrant of the County Treamrer upon ap roval of title and delivery of deed, end that 16) *the E96 budget be amended to include collecteci though unanticipated reveuues * and to include this e-xpenditure.’ J J,.a+2.: “It can hard>; be contended that the order of April 29 1944, in itself effected au amendment of the !9l$+ bu&ct. 21 fact. the ox& does not cv &&t the LIIILBr;‘:Bncv-one set fort& in Che atatutq a nuthor$&1. an me dment or‘the buti.etdo in f ct f&g&. It nix have bzen contomlated by the Com&sionersl Court that s&e furthar order h4th reference to the county’s budget vou.Id be entered. This is augr;ested in sgixllsntsl brief. However tiiat nay be, the order of ApriI 23, 1944, Is insufficient l.u itself (and there la no further order in the record) to authorice the deliver of a county war- rant for the sum of 337,500 to Xrs. Be1P. It follows that the fnjumtlon issued reatrainine the pa t of the county’s funds to her under snd by virtue of the E” ” oxmissioners’ Court order of April 29, 1944, was properly 16mcd.!’ (Emphasis ours 1 held In our Opinion No. 0-5053-A : 'k*e “This de ertnent has re atedly held ti.at the question of *,Tave pubElc necessity’ r a a fact question to br: de- termined primarily by the coimi66ioner6r court. It Is apparent from your letter that your position is that no ‘grave public neoesaitst existed at th6 time the county budget was amended to take care of Increase in salaries for certain county officials and therefore the oonmiaslon- era’ court was unauthorized to nake such amendment. Hmmr6r, Hon. C. Simmons - Page 4 on t&e other hand it is apparent that the comis- sloners* court did decidm that they were legally authorlsed to smend the county budget and In fact did amend said budget. vThl8 department has held (Opinion No. O-2315) that the discretion of the commissioners* court is not absolute authority to expend count fuuds lu the case of en emergenc and Is final, o ny:y where the question is debatab 31’ e or where the existence of an emergency is unquestionable. However, said court has no authority.to determiue snd declare that sn smsr- genoy exists, and expend county funds therefor, where the facts clearly show the contrary. Such court has no legal authority to declare au emergency and evade tie law, where in fact, no emergency exist8.w In view of the foregoi It is the o inion of this de- partment that the Cof!m&sioners’ T’ourt Is unaut Rorised to make the expenditures mentioned by you unless It finds, In their judgment, the financial condition of the county and the needs of the officers justify the increase in compensation. The Comulaslonersl Court must make such expenditures “In strict compliance with the budget law except emergent expenditures In the case of grave ;3ubl5.c neces- sity to meet unusuaI and unforeseen conditions which could not by reasonable, diligent thought and attention have been Included in the original budget*. On the basis of the lsnguage contained in Da&cy v. Davidson, it, is our further opinion thnt the order of the Commlsslonerst Court which ou have sent us does not authorlsa the proposed increase in the s aI arise of the various county officials since ~sald order does not contain findings that the emsrgenoy conditions set forth in the budget law authorizing an amendmentto the budget do In fact exist. Yours very truly Al’TOBI’E~ GENiZULOF TlZiS Assistant JR:djm