Untitled Texas Attorney General Opinion

Mr. R. L. Dunbar Opinion No. M-696 County Auditor Montague County Rer Authority of Commissioners Montague, Texae 76251 Court to pay for publication of plat in the absence of budgetary authority and declaration of emergency, Dear Mr. Dunbara 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 commis- sioners, 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 inquired whether the county auditor may lawfully approve payment of the account and whether the county may lawfully pay the account. In prescribing that certain publicationsmust be made relating to a change in the voting precincts,' Article 2.04 merely prescribes the minimum publicationthat is required under the statute. This minimum is mandatory. Attorney General's Opinion No. O-4623 (1942) and V-266 (1947). The statute does not purport to limit the publishing of the information. Whether additionalpublication of the same or related informationis made is a disaetionary~matter within the power of the Conunfe- sioners Court to decide. The statute having expressly provided that the CommissionersCo&t shall.qive plblicity to the order redistrictinsthe votinu orecincts. the Court has broad disaetior in exercisinq that-&.- Canales-v.Cauohlin, 147 Tex. 169, 214, S.W.2d. 451 (1948). ,' We note that in this instance the first publication was made in a newspaper published in the northern end of the county whereas the second publicationwas made in a newspaper published in the soutbern end.of the county. We can not say that the CommissionersCourt could not reasonably reach the con- elusion that publication in the second paper was'necessaryin order to reach voters in all parts of the county.,and that the need for such publication constitutedan emergency. Attorney General's OpinionNo. O-2498 (1940);'Certain presumptions attach to the,iralidity of the official acts 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 CommissionersCourt if it has not already done so, may by proper order put the accoun covering publication in the second newspaper in line for approval by the county auditor and upon such approval the county may pay the account. -3364- or. R. L. Dunbar, page 3~ (M-696) The court would need to amend the budget under.the pro- visions 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 publica- tion of the plat:and payment of the fee for' the publication. As authority for the validity of an order amending the budget and finding 'an emergency 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. 'is'void.. for.tbe reason cbrmniasioner's'~~~road'$re'cincte that on such date no emergency then existed authors izing such amendment because the services of the en- gineers, 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 be- fore 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.,the time.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-m- stances as existed at the time the obligation was in- curred 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 Com- missioners 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 ad- dition 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 obli- gation 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