### 5806

THE ATTORNEY 

### GENERAL

OF TEXAS -____.~__._ _.... -~-

honorable DeanMartin County Attorney Grayson County Sherman, Texas

Dear Sir: Re: Whether Grayson County maydisburse funds from the four constitutional county funds to acquire lands, easements, and rights-ofway needed for construction of water control and soil conservation structures, and related questions. Your request part as follows: for opinion from this office states in

"The Grayson County Commissioners' Court by its order passed on March 6 1962, entered into an agreement with the Unitei States Department of Agriculture Soil Conservation Service wherein the County is to furnish funds for certain phases of construction and maintenance of water control and soil conservation structures to be built by the Soil Conservation Service. Opinion NO.~~-1382

"Section 1, Paragraph A, of the agreement states the County will acquire without cost to the Federal Government such land, easements or rightsof-way as will be needed in connection with the works of improvements. "Section D, Paragraph 4, of the agreement states that sufficient funds shall be budgeted annually by the County to carry out the maintenance of these structures as provided by the contract. "Grayson County has taxes levied for the four constitutional operating funds as follows:

General Fund Road and Brid&e Fund Permanent Improvement Fund Jury Fund" You then ask the following three questions:Honorable DeanM&In, pa:e 2 (Ww-1382)

"1

. Fromwhat existing Grayson CountyFund or funds can monies be legally expended to acquire land, easements or rights-of-way needed for the U. S. Department of Agriculture Soil Conservation Service In connection with construction ‘ofwater control andsol1 conservation structures?

“2. ,From

whet existing Grayson Countyfund or funds can nonles be legally expended for the malnterance of water control andsoil conservation structures constructed by the U. S. Department of Agriculture Sol& Conservation Service? “3

. If your ruling is that Grayson County has no existing funds fromwhich the above expenditures can bemade, then what is the degree of liablllty of the CountyAuditor andthe’suretles on his bond, If said auditor approves warrants lllegaily drawnon existin& county fundsF Your letter also informs us that Gra not oomplled With the provisions of Article son Countyhas 7 d 8a of Vernon’s Civil Statutes, which provides in part as follows:

"SBC. 2. Fromandafter January 1, 1951, the several counties of the State be andthey are hereby. authorized to levy, assess andcollect advaloren taxes uponall property within their respective boundaries for county purposes, except the first Three ThousandDollars ($3 000) value of residential homesteads not to exceed thirty cents (304) on each One IiundredDollars ()lOO) valuation in additior? to all other,ad valorem taxes authorize 4by the Constitution of the State, provided the revenue therefrom shall be

for Farm-to-

### 5807

Xonorable DeanMartin, page 

### 3 (~~-1382)

I,

. . . "S8C. 

### 5. Thefunds transferred to the Flood Control Fundsshal.3be under the jurisdiction andcontrol of the Commissioners Court of such county and shall be uaed solely for Flood Ccntrol purposes. All or part of said funds maybe used in connection with the plans andprograms of the Federal Soil Conservation Service andthe State Soil Conservation Districts and the Statr Extension Service, Conservation andReclamation Mstricts, Drainage

provided that such plans for improvement are' ;;rnT8d by such county andpolitical subdivi-

. (Emphasisadded) In dttCEn8yCeneralls Cplnion NO.VW-595(19591, the writer was ccncerned with the situation wherein the Kavarro-Hill CountySoil Conservation District had not complied with the provisions of Article 7dt8a OSVernon's Civil Statutes, but desired to construct andmaintain dams nevertheless. Since no county tax funds were therefore 1evieA for this purpose,'the opinion held as follows:

9avarro Countycan 9endtax moneyto maintain damsconetructed % kvarro county by the Kavarro-HI11 Soil Conservation District unIn addition Opir&n N-596 (1959) also held that funds could not be expended for the maintenance of soil conservation projects Mess there was‘acomsllacce with the provisions of Artic18 7C48a.Honorable DeanMartin, page 4 (W-1382)
Subsequent to the release of the above cited OPiniOnS, the Legislature passed Article 1109k and in Section 3 of said statute specifically authorized the A isbursement of Permanent Improvement Funds for carrying out the pUI’pOS8Sof the Act. However, an inspection of that statute leads USto the COnClUsion that its provisions were to apply whena soil conservation di ri t water control and improvement district ?iz%& or drainage

had been created. Nosuch district having been created in Grayson County, it follotls that the provisions of Article 1109k.do not apply. For the above stated reasons Article 1581e is likewise inapplicable.

After a consideration of the above authorities, weadvise you that Article 7C48a represents a detailed method for the establishment and maintenance of Vater control and soil conservation structures, and that no tax moneymaybe expended for the purposes outlined in your letter unless taxes were levied pursuant to the provisions of Article 7048a and for those purposes. Manyopinions from this office have held that disbursements may not be madefrom the General or Permanent Improvement Funds for the purposes outlined in ions Nos. O-37 (19391, cour letter. Attorney General Is Cpin0- 13 (1939)) and O-629 (1939). Since Grayson County has no Flood Control Funds, you are therefore advised that Grayson County has no funds available for purchasing land and rights-of-way water control and soil conservation sc or for the maintenance of ructures. Your first and second **qUeStiOnS** are accordingly answered negatively.

As to your third question, If the CountyAuditor approves warrants drawn on the four constitutional funds to pay for any items in conjunction with the water control and conservation structures, it follows that such disbursements were unauthorized by law and consequently illegal.

After the County Auditor has assumed his office by making bond and taking an oath according to the provisions of Article 1649, he is governed byArticle 

### 1651which provides in part as follows:

“The Auditor shall have a general oversight of all the books and records of all the officers of the County, district or state, whomaybe authorized or required by law to receive or collect any money, funds, fees, Or other property for the use of, or belonging to, the county; and he shall see to tb strict enforcement of the law aoverni2lg county finana.” (Emphasis added) In addition Article 1653 states as follows:

### 5808

Nonorable DeanHartin, page 

### 5 (w-1382)

“Heshall have continual access to and shall examine all the books accounts reports, vouchers and other records’of any officer, the orders of the commissioners court, relating to finances of the county, andall vouchers given by the trustee of all commonschool districts of the county ma shall inauire into the correctness of same.” (EmphasisadLed) Artiole 1660states‘as follows:

“9ill claims bills ard accounts against the county must **be** filed in ample time for the auditor to examine andapprove samebefore the meetings of the ccmmissloners court. Noclaim bill or account shall be allowed or paid until it has been examined andapproved by the county auditor. The auditor shall examinethe sameard stamphis approval thereon. If hedeemsit necessary, all such accounts, bill,‘or claims must be verified by affida-. vit touching the correctness of the same. The auditor Is hereby authorized to adninister oaths for the purposes of this law.It Article 1661 states as follows2
*less it has baen contracted as nrovlaed bvla::, nor any account for the purchase of supplies or materials for the use of said county or any of its z;f;kFs unless;ln addition to other requirements

there is attached thereto a requisition slgned’by the officer ordering sameandapproved by the county judge. Said requisition mustbe made out and signed andapproved In triplicate by the said officers the triplicate to remain with the officer deslr&g the purchase the duplicate to be filed with the county auditor, and the orlgiral to be delivered to the party fromwhomSaid purchase is .to bemadebefore any purchase shall be made. All Warrants on the county treasurer, except warrants for jury service, mustbe countersigned by the county audltor.VB (Emphasisadded) Underthese rules it is ok opinion that the County Auditor ana the sureties onhis bond are liable for the amount of c!oncyor disbursements he a?)proved !:ithout. proper authority. This conclusion results from a*vlolotion of the terms of his bond %onditionod for the fait!tiul performance of his duties,”Honorable DeanMartin, page 6 NW-1382)

as required byArticle 1649. .OpiaiOnPO. O-4715 (1942)..'And 153 S.W.2d 2% (Civ.App. 19'tl); 2 S.W. 291 (Clv.App. 1917, error ref. Y

Since Grayson Count has not oomplied'with the provisions 

### of Article 7 0s8a of Vernon's Civil Statutes, there are noexisting funds that my be expendedfor the purchase of land or maintenance of water oontrol and soil conservation structures constructed by the U. S. Departmentof Agriculture Soil Conservation Service. If the CountyAuditor approves Illegal andu& authorized disbursements drawnon existing county funds, hsand the suretles onhis bond are liable for the amorrntsIllegally expended. Yours very truly, WILLWILSGN Attorney General of Texas

APPRGVED: OPINION

COML3ITTE& W.V. Geppert, Chairman 'Malcolm Quick Maran Nesbitt Dudfey M&alla REVIXWED~FGR

THEATTGRNEYGE~PAL BY8 Leonard Passmore