The Attorney General of Texas 

xay 14, 1982 

MARK WHITE 

Attorney General 

Supreme Court Buildin 

P. 0. 80x 12546 

Justin. TX. 76711. 2546 

5121A752501 

Telex 9101674.1367 

Telecopier 512/475-0266 

1607 Mm St.. Sui\e 1400 

Dallar. TX. 75201.4709 

2141742-6944 

A624 Alberta Ave.. Suite 1M) 

El Paso. TX. 79905.2793 

9151533.3464 

1220 Dallas Ave.. Suile 202 

Houston. TX. 77002.6966 

7131650.0666 

606 Broadway. Suite 312 

LvbbOCk. TX. 79401.3479 

5061747.5235 

4309 N. Tenth. Suite 8 

Mc~llen. TX. 76501.1665 

5121662.4547 

200 Main Plaza. Suile 400 

San Antonio. TX. 762052797 

5121225-4191 

Honorable James Warren Smith, Jr. 

County Attorney 

Frio County 

P. 0. Box V 

.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 by a locel bank. 

The operation ended successfully with a number of grand jury 

indictments. You ask if the sheriff may be reimbursed by the county 

for the money he personally expended on the project. If so, you ask 

if the county auditor may approve payment of the claim notwithstanding 

the absence of competitive bids as required by article 2368a. V.T.C.S. 

It is the duty of the sheriff to be a conservator 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 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