# TheAttorney GeneralofTexas

xay 14, 1982

MARK WHITE Attorney General

Supreme CourtBuildin P.0.80x 12546 Justin. TX. 76711. 2546 5121A752501 Telex 9101674.1367 Telecopier 512/475-0266

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200Main Plaza. Suile 400 SanAntonio. TX. 762052797 5121225-4191 Honorable JamesWarren Smith, Jr. County Attorney Frio County P. 0. BoxV .Pearsall, Texas 78061 Opinion No.MW--46?

Re: Authority of county to reimburse county sheriff with public monies for personal loans Incurred in conducting county-wide drug investigations

Dear Mr. 

### Smith:

As we understand the facts relating to your request for an opinion, the sheriff of Frio County, with the approval of the Frio 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 purchase of drugs, and ocher expenditures, might be necessary to successfully complete 

### the undercover work. In order to allow the investigation to go forward, the sheriff personally provided almost $16,000 to finance It, $14,000 of which was loaned to the sheriff expressly for that purpose byalocel bank.

The operation ended successfully with a number of grand jury indictments. Youask if the sheriff maybe reimbursed by the county for the moneyhepersonally expended on the project. If so, you ask if the county auditor mayapprove payment 

### of the claim notwithstanding the absence of competitive bids as required byarticle 2368a. V.T.C.S.

It is the duty of the sheriff tobe aconservator of the peace In his county, and to apprehend all offenders. Penal Code 52.17. The deployment of law enforcement officers within the county Is amatter left to his discretion. Weber v. City of 

### Sache. 591 S.W.2d 559 (Tex. Civ. App. - Dallas 1979. nowrit). 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 acounty to “fix the amount of compensstion, office expense, travel expense, and all other allowances” for the sheriff

. Thecommissioners court of the county is therefore authorieed to allow 

### such expenses If 

### they are reasonably

p. 1638Honorable 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 52of 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, nowrit). 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 wassaid. “The money is used to combat crime, a proper public purpose.... Thecost of ‘purchasing’ evidence under the circumstances... is an expense of the agency and not the individual expense of the employee acting for it. TheDepartment should bear the financial burden and risk -- not the employee.” See also Attorney General Opinion H-1148 (1978) (county “flash money” fund).

If moneywasexpended by the sheriff for aproper 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 52of the constitution. Barrington v. Cokinos, 338S.W.2d 133 (Tex. 1960). Nor is it necessarily a bar that, at the time the sheriff spent the money, there was no county moneybudgeted for such expenditures.

The budgetary process of Frio County is governed by article 689a-11, V.T.C.S. It specifies the time when thenbudget is to be adopted each year andprovides:

Whenthe 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, mayfrom time to time be authorized bythe 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

. - SanAntonio 1937, nowrit). See Gussett v. Nueces County, 235
-

P. 1639Honorable JamesWarren Smith, Jr. - Page 3 LMW-469)

S.W. 857 (Tex. Comm.App. 1921). If the commissioners c.‘urt concludes that the sumsspent bythe sheriff were emergency expend::ures madeat
a time of grave public necessity to meet unusual conditions which could not have been reasonably foreseen in time to include themin the original budget, it may, on its own motion, amend the budget to provide for their payment bythe county.

The budgetary amendment process could also be set in motion by the sheriff himself if he requests agrievance 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 makecontracts 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). Thereimbursement of the sheriff for necessary expenses incurred does not involve acontractual obligation to the sheriff on the part of the county. It involves astatutory duty towhich the competitive bidding statute is not applicable. The fact that part of the money used by the sheriff wasobtained from apersonal 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 anymoney reimbursed to himis (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. Theymerely exposed the “flash” moneyused bythe sheriff toarisk of loss -- muchas sheriff ’s vehicles are exposed to possible damage or destruction when used in pursuit of lawviolators. The county never became contractually obligated for the purchase price of the contraband evidence, andwasat all times legally entitled to recover anycounty moneypaid to the person fromwhomit was “purchased.” See 14Tex. Jur. III Contracts 9176, at 287; 1Tex. 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, 190S.W. 501 (Tex. Civ. App. - Port Worth 1916. writ ref

’d w.o.m.) (illegal contract, constructive trust).

p. 1640Honorable JamesWarren Smith. Jr. - Page 4 (flW-469)

SUMMARY

The Frio county Commissioners Court is authorized to reimburse the sheriff for the personal funds heused tomeet reasonable expenses of a narcotics investigation. The competitive bidding statute is inapplicable.
Very truly yours.

MARK WHITE Attorney General of Texas

JOHNW.FAINTER,JR. First Assistant Attorney General

RICHARDE. GRAYIII Executive Assistant Attorney General Prepared byBruce Youngblood Assistant Attorney General

APPROVED: OPINIONCOMMITTEE

SusanL. Garrison. Chairman Jon Bible Patricia Hinojosa JimMoellinger Bruce Youngblood

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