### 3C

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN QROVCR

**SELLERS** ATIOINEY

OmNRALlion. C. Simmon8- Page 2

“b’ith tNs increase in oifect the 

### Officers Salary would b #lately $9,000.theendof1947beoverdrawnapproxi50and

### nofunds

available

intheGeneral Fundtosupplement

heSalary

Fund.

“Could this be a legal expendlt,ure, OF should the Court be required to keep the expenditures within the estimated receipts?n In answer to our letter requesting. additional Information, you sent us a copy of 

### thefollowing order8

,“The State of Texas, -County of Henderson:

“IOn this the 5th day of August AS. 

### 1946the Commissioners Court met in re,-@ar session and also resumedtheir duties as a Board of Zqualieation.

“‘Anon~ other thlnge the following Foceodings were had to wit: Gnmotion madeby Commissioner Boatright md seconded by Conmissioner 2. D. Larron that salaries of County Officials be increased 255 of their present mlarles and their de uties i;nd emlo ees salaries be increased 10s of the& present s&a&s, a vote was taken and samewas paseed **unanino~aly** by the court to become effoctlve on September 1 

### 1946. ThoAuditor was Instructed to amendthe budget to t&at effect. The Court moved to ’ ;$;u~ as en Squall ration Board until Monday, August 12,

z*~galnon August 

### 26,1946, order again passed to 'amnd,bxzdCet raisin:: mlaries as per order of Court passed 

### hg. 5,1946.'" The Comiosioncrsf Court mst find that the financial condltlon.of the county Is such as will permit the proposed Increase in salary, and must also find that the needs of such officers justify t,h; 2~: before the proposed increase mentioned 

### Inyour Inquiry

This dopartnent has repeatedly held that any‘increase of a QgUWyofficial authorleed by S. B. I-23, **Acts** c& ~$tta#&l;ture Reg. **Scs,** 

### 1945 would be subject to the budge’

- -- $@a-ll V.1.C .S. 1 and that in order to for such*increaso, the co& 

### ii rovlde 

### 1 budget would have 

### tobeamende in ' accordance with said budget a?:. In connection with the foregoing, we calJ. your attention to the following. In the case of Dsnc V. Davidson, 183, S.;i. 2d 

### 195,(writ refused) the Court stated t e h followlng :Hon. C. Simon6 - ?aze 3

“The order of the Comissionere~ Court referred to in the stipulation is t!:at eet forth (insofar as naterial parts are concerned) in the forcpart of this opinion. Srlofly stated, the order deirlarus that (1) there exSat6 a neoescity’ for Gazeron Count to acquire a building in San Benito, (2) that the bui ding owned 1 by Itis. Jennie 3. 3011 is suitable for the County’ a needs, (3) thct the price asked thsrefor is reasonable and fair, (4) that the. Count has current funds not othemise ap ropriated,

P suff cient to purchase the

1 property, (5 that Yzs. Bell be’paui j37,5GO.30 by warrant of the County Treamrer upon ap roval of title and delivery of deed, end that 16) *the E 96 budget be amendedto include collecteci though unanticipated reveuues * andto include this e-xpenditure.’ J J,.a+2.:

“It can hard>; be contended that the order of April bu&ct. 21 fact.the ox& does not cv 29 1944, in itself effected au amendmentof the !9l$+ &&t the LIIILBr;‘:Bncv -one set fort& in Cheatatutq a nuthor$&1. an me dment or‘ the buti.et

do in 

### f ct f&g&. It nix have bzen contomlated by the Com&sionersl Court that s&e furthar order h4th reference to the county’s budget vou.Id be entered. This is augr;ested in sgixllsntsl brief. However tiiat nay be, the order of ApriI 23, 1944, Is insufficient l.u itself (and there la no further order in the record) to authorice the deliver rant for the sumof 337,500 to Xrs. Be1 P of a county war-

. It follows that the fnjumtlon issued reatrainine the paE”” t of the county’s funds to her under snd by virtue of the oxmissioners’ Court order of April 29, 1944, was properly 16mcd.!’ ours 1 (Emphasis

'k*e held In our Opinion No. 0-5053-A :

“This de ertnent has re of *,Tave pub lc necessity’

E r atedly held ti.at the question

a a fact question to br: determined primarily by the coimi66ioner6r court. It Is apparent from your letter that your position is that no
‘grave public neoesaitst existed at th6 time the county budget was amendedto take care of Increase in salaries for certain county officials and therefore the oonmiaslonera’ court was unauthorized to nake such amendment. Hmmr6r,Hon. C. Simmons- Page 4

on t&e other hand it is apparent that the comissloners* court did decidm that they were legally authorlsed to smendthe county budget and In fact did amendsaid budget. vThl8 department has held (Opinion No. O-2315) that the discretion of the commissioners* court is not absolute authority to expend count fuuds lu the case of en emergenc ony: question is 31’ and Is final, y where the

debatab e or where the existence of an emergency is unquestionable. However, said court has no authority.to determiue snd declare that sn smsrgenoy exists, and expend county funds therefor, where the facts clearly show the contrary. Such court has no legal authority to declare au emergency and evade tie law, where in fact, no emergency exist8.w In view of the foregoi partment that the Cof!m&sioners’ T’ It is the oR inion of this deourt Is unaut orised to makethe expenditures mentioned by you unless It finds, In their judgment, the financial condition of the county and the needs of the officers justify the increase in compensation. The Comulaslonersl Court must makesuch expenditures “In strict compliance with the budget law except emergent aI expenditures In the case of grave ;3ubl5.cnecessity to meet unusu and unforeseen conditions which could not by reasonable, diligent thought and attention have been Included in the original budget*.

Onthe basis of the lsnguage contained in Da&cyv. Davidson, it, is our further opinion thnt the order of the Commlsslonerst Court which ou have sent us does not authorlsa the proposed increase in the saIarise of the various county officials since ~sald order does not contain findings that the emsrgenoy conditions set forth in the budget law authorizing an amendmentto the budget do In fact exist. Yours very truly
**Al ’** **TOBI ’** **E~** GENiZUL

OFTlZiS

Assistant

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