January 10, 1939

Mr. R. A. Courtney County Auditor Angelina County Lufkin, Texas Opinion No. O-38 Re: Right.of Commissioners' Court to contract for a special audit df County books.

Dear Mr.,Courtney:

Your request for an opinion as to the right of and the authority of the Commissioners'Court to contract for a special audit of County books has been received by this department.

The County budget law,Article 689a, Vernon's Annotated Civil Statutes, Section 11, provides,'in effect, that no ~expenditu'res of County funds shall be made except In strict compliancewith the County budget, providing that emergency expenditures may be authorized from time to time by the Commissioners'Court by way of amendments to the originalbudget. However, the emergency must be such as is provided for in the statu~te and tomeet unusual and unforeseen conditionswhich could not have been included in the originalbudget by reason of diligent thought and attention.

vides:' Article 1641, Revised Civil Statutes, pro-

"Auditby accountant. -- Any commissioners court,when in its judgmentan imperativepublic necessity exists therefor,

. shall have authority to employ a disinterested, compe,tent

and expert public accountant to audit all or any part of the books, records, or accounts of the coun,ty; or of any district, county

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Mr. R. A. Courtney,January 10, 1939, Page 2

or precinct officers, agents or employes, Including auditors of the counties, and all governmentunits of the county, hospitals, farms, and other institutionsof the county kept andmaintained at public expense, aswell as for allmatters relating to or affecting the fiscal affairs of the county. The resolutionproviding for such audit shall recite the reasons and necessity existing therefor such as that in the judgmentof said court there exists officialmisconduct,willful omission
or negligence ,inrecords and reports,misapplication, conversionor retention of public funds, failure in keeping ,acc6unts, making reports and'accountlng for public fundsby any officer, agent, or employe of the district, county or precinct, including depositories,hospitals, and other public in- -stltutlonsmaintained for the public benefit, and at public expense; or,that In the judgment of the court, it is necessary that it have the. informationsought to enable it to determine and fix proper appropriationand expenditure of publicmoneys, and to ascertain and fix
a just and proper tax levy. The said resolutionmay be presented,inwriting at any regular or called sessions of the commissioners court,but shall lie over to the next regular term of said court, and shall be published in one issue of a newspaper of general circulationpublished In the county provided if therebe no such newspaper published in the county, then notice thereof shall be posted in threepublic places in said county, one of which shall be at the court house door, for .atleast ten days prior to its adoption. At suchnext regular term said resolution shall be adoptedby a majority vote of the fourcommissioners of the court and approved bye the county judge. Any contractentered into by said commissioners court for the audit providedherein shall be made in accordance with the statutes applicable to the letting of contractsby said court, payment forwhich mayA

Mr. R. A. Courtney, January 10, 1939, page 3

be made out of the public funds of the county in accordancewith said statutes. The authority conferred on county auditors contained in this title as well as other provisions of statutes relating to district, county and precinct finances and accounts thereof shallbe held subordinate to the powers given herein to the commissioners'courts (ACtS 1923, p0 170)*"

In view of the foregoingauthorities, it is my opinion that the Court did not exceed its authority in awarding this contractprovided the conditionsexisted and the procedurewas followed as prescribed in Article 1641. However, unless there was imperativepublic necessity for such action the Court would have no authority tomake such contract. According to the countybudget law, any expenditures of county funds shouldbe provided for in the budget
or by way of amendment to the originalbudget and, in the event themoriginalbudget or some amendment thereto does not provide for such expenditures, the same couldnot be legally paid out of the County Funds.

Trusting that the foregoing answersyour inquiry, I remain
Respectfullyyours

ATTORNEYGENERAL OFTEXAS

BY Ardell~~Williams

Assistant AW:AW

APPROVED:

Gerald C. Mann Attorney General of Texas