3C 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN QROVCR SELLERS 

ATIOINEY OmNRAL 
lion. C. Simmon8 - Page 2 

“b’ith tNs increase in oifect the Officers 

Salary would b 

#lately $9,000. 

the end of 1947 be overdrawn approxi50 and no funds available in the General 

Fund to supplementhe Salary 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 the following order8 

,“The State of Texas, 

-County of Henderson: 

“IOn this the 5th day of August AS. 1946 the 

Commissioners Court met in re,-@ar session and also resumed their duties as a Board of Zqualieation. 

“‘Anon~ other thlnge the following Foceodings 

were had to wit: Gn motion made by 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 em lo ees salaries be increased 10s of the& present s&a&s, a vote was taken 

and same was paseed unanino~aly by the court to become 

effoctlve on September 1 1946. Tho Auditor was Instructed 

to amend the budget to t&at effect. The Court moved to ’ 

;$;u~ as en Squall ration Board until Monday, August 12, 

z*~galn on 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 In your Inquiry 

This dopartnent has repeatedly held that any‘increase 

of a QgUWy official 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 to be amende 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 h e 

f ollowlng : 
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 1 ding owned 

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 1 cient to purchase the 

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 

amended to include collecteci though unanticipated 

reveuues * and to 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 amendment of the !9l$+ 

&&t the LIIILBr;‘:Bncv -one set fort& in Che atatutq 

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 sum of 337,500 to Xrs. Be1 P 

of a county war- 

. It follows that 

the fnjumtlon issued reatrainine the pa 

E”” 

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 E lc necessity’ 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 amended to 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 smend the county budget and In fact 

did amend said 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 o ny: 

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 o 

R 

inion of this deourt Is unaut orised to make the 

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 make such expenditures “In strict compliance with the budget 

law except emergent 

aI 

expenditures In the case of grave ;3ubl5.c necessity to meet unusu and unforeseen conditions which could not by 

reasonable, diligent thought and attention have been Included in 

the original budget*. 

On the basis of the lsnguage contained in Da&cy v. 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 s aI arise of the various county officials since ~sald order does 

not contain findings that the emsrgenoy conditions set forth in the 

budget law authorizing an amendment to the budget do In fact exist. 

Yours very truly 

Al’TOBI’E~ GENiZUL OF TlZiS 

Assistant 

JR:djm