Mr. R. L. Dunbar

County Auditor Montague County Montague, **Texae 76251** 

Dear Mr. Dunbara Opinion **No. M-696** 

Rer Authority of Commissioners Court to pay for publication of plat in the absence of budgetary authority and declaration of emergency, and under stated circumstances.

**.** You have advised us in your recent letter that **on** October 13, 1969; the Commissioners Court of Montague County. by order duly recorded in the minutes **of** the Court, redistricted Montague County into voting **precincts** under authority of **Article** 2.04 of the Election Code of the State of Texas.

**You state**  that **in** accordance with Article 2.04 the Commissioners Court published its order in the issues of October 23, 30 and November 6, 1969, of,a newspaper published in Montague County, and that such notice gave a description of the boundaries **of** the newly formed voting precincts in compliance **with** Article **2.04.**

You further state that in **the first**  week of May, 1970, hdiately prior to the primary election, the county commissioners, without an order of the Conrmiseioners Court having been Previously entered, caused a 

### plat to be published in another newspaper published in Montague County, 

### said plat being published in two issues during the same week.,and **that** the plat reflected the boundaries 

### of the newly formed election precincts in only the southern half **of,the** county. Thereafter, on **May** 11, 1970, the Conuaissioners Court, by a majority vote **of** 3-2, retroactively authorized the publishing of the plat in the second newspaper in May, 1970; and **that** now **the** County Auditor refuses to approve the publishers account.

**-3363-**lb. R. L. Dunbar, page 2 **(M-696)**



### You have inquiredwhetherthe countyauditormay lawfullyapprovepaymentof the accountandwhetherthe county may lawfullypay the account.

In prescribing**that** 

### certainpublications mustbe made relatingto a change in the votingprecincts,' Article 2.04 merelyprescribesthe minimumpublicationthat is requiredunder the statute. This minimum is mandatory. AttorneyGeneral's OpinionNo. **O-4623** 

### (1942)and V-266 (1947). The statutedoes notpurportto limit the publishingof the information.Whether additional**publication of**  

### the same or relatedinformationis made is a disaetionary~matterwithin **the power**  

### of **the** Conunfe

### sionersCourt to decide. The statutehaving expresslyprovided 

### that the Commissioners Co&t shall.qiveplblicityto **the order**  

### redistrictins

the votinu orecincts.**the** 

### Courthas broad disaetior in exercisinqthat-&.- Canales-v.Cauohlin,147Tex. 169, 214, S.W.2d.451 (1948).,'

We note that in this instancethe **first** 

### publication was made in a newspaperpublishedin the northernend **of the**  

### countywhereasthe secondpublication was made in a newspaper 

### publishedin the **soutbern end.of**  

### the county. We can not say that the CommissionersCourt couldnot reasonably**reach** 

### the conelusionthatpublicationin the secondpaperwas'necessaryin orderto **reach** 

### voters in all parts of 

### the county., and that **the** 

### need for suchpublicationconstitutedan emergency. Attorney General'sOpinionNo. O-2498 (1940);'Certainpresumptions attachto the,iralidity of **the** 

### officialacts **of** 

### the Commissioners Court,Bemar f3oontv.v~ &tlev, 136'Tk. 354, 150 S.W.Zd 980,987 (1941).

It is our opinion,therefore,that the Commissioners Court if 

### ithas not alreadydone so,may by **proper order**  

### put the accoun coveringpublication**in** 

### the **second** 

### newspaperin line for 

### approval **by** 

### the county**auditor** 

### and **upon** 

### such approvalthe countymay pay **the account.** 

**-3364-**or. R. L. Dunbar, page 3~ **(M-696)**

The court would need to amend the budget under.the provisions for amendment set out in Article 6S9a-11, Vernon'8 Civil Statutes, including a finding of **an** emergencyand a statement of the facts creating.such emergency, as.well as order **the** publication of the plat:and payment **of** the fee **for' the**  publication.

As authority for the validity of an order amending the budget and finding 'anemergency after the obligation has been incurred, we quote as follows fromMorrison v. Xohler., 207 S.W.2d, 951 (Tex.Civ.App.,1948, error ref. n;r.e..)r

"We cannot agree with appellants,': contention, that the Crder of the Commissioners' **Court-of** Decem-

**. ‘** **,-ber 9,**  1946**,:ainending the**  budget'for.the. sewera3. cbrmniasioner's'~~~road'$re'cincte 'is' **void..** for.tbe reason **that** on such date no emergency then existed authors izing such amendment because the services of **the** engineers, for which the amendment was made to cover. had already been performed. We.find nothing in the budget law requiring the budget be amended at the time or before an obligation.not .included:in **the** budqet.could be legally assumed. **we** feel **that** it would **be altogether**  **too strict.a**  construction to place upon **the** prwisions of the budget laws governing counties to require that the budget'should be%amended at.,thetime.the obligation
was incurred. On.the.contrary..we believe that ~&he Commissioners' Court in amending any budget to cover any item of.'expense **not** ~already..covered,in**the** .original budget should ;becontrolled by **the facts**  and air-mstances as existed at the time **the** obligation was incurred or aasumed. Since the amendment of the budget in question was madeto **.take** 

### care **of** and provide for payment for services theretofore rendered, the.question of whether an emergency authorizing the amendment of the budget existed, it was proper.for the Commiaaioners' Court to be governed by the **facts** and.circumstances,

**-3365-**Mr. R. L. Dunbar, page 4 **(M-696)**

existing on the date **of** the original employment, and when this is done we feel that a sufficient showing of an emergency authorizing the amendment of the budget in queetion was made. See Soears v. Citv of South **Houston,** 136 Tex. 218, 150 S.W.2d 74, and cases there cited."

For additional authority to the effect that a Commissioners Court may ratify that **which** it could **approve** in **the first**  instance, see Attorney General's Opinions Number **M-635** .(1970),WW-1332 (19621, M-164 (1967), and C-156 (1963), and **the** cases cited therein.

To the **extent that**  it conflicts with this opinion, Attorney General's Opinion Number O-6132 (1944), is hereby overruled.

SUMMARY

It is within-the discretionary power of a commissioner's court to elect to order publication of information relating to **the** redistricting of the county **into** voting precincts which is in addition to **the** minimum publication required by Article 2.04 

### of **the** Election Code of Texas.
Attorney qeneral's Opinion No. O-6132 (1944) is overruled to the extent of any conflict with this opinion.

The commissioner's court may by an order passed subeequently to the incurring of an obligation **for such**  additional publication amend the budget and find an **emergency** so that the county auditor may apprwe and **the** county may pay the account **for** such publication
n truly yo 8,

& P " ct= . N neral of Texas

**-3366-**Mr. R. L. Dunbar. page 5 (M-696)

prepared by James 6. Swearinqen Assistant Attorney General



### Kerns Taylor, Chairman W. E. Allen, Co<hairman

Austin C. Bray, Jr. Gordon Cass Terry Roberts Max Hamilton

MEADEF. GRIFFIN Staff Legal Assistant

ALFREDwALxER Executive Assistant

NOLA WHITE First Assistant

.-3367-