Untitled Texas Attorney General Opinion

5806 THE ATTORNEY GENERAL OF TEXAS _.... -~- -____.~ __._ honorable Dean Martin Opinion NO. ~~-1382 County Attorney Grayson County Re : Whether Grayson County may dis- Sherman, Texas burse funds from the four consti- tutional county funds to acquire lands, easements, and rights-of- way needed for construction of water control and soil conserva- tion structures, and related Dear Sir: questions. Your request for opinion from this office states in part as follows: "The Grayson County Commissioners' Court by its order passed on March 6 1962, entered into an agreement with the Unitei States Department of Agriculture Soil Conservation Service wherein the County is to furnish funds for certain phases of construction and maintenance of water control and soil conservation structures to be built by the Soil Conservation Service. "Section 1, Paragraph A, of the agreement states the County will acquire without cost to the Federal Government such land, easements or rights- of-way as will be needed in connection with the works of improvements. "Section D, Paragraph 4, of the agreement states that sufficient funds shall be budgeted annually by the County to carry out the mainten- ance of these structures as provided by the con- tract. "Grayson County has taxes levied for the four constitutional operating funds as follows: General Fund Road and Brid&e Fund Permanent Improvement Fund Jury Fund" You then ask the following three questions: Honorable Dean M&In, pa:e 2 (Ww-1382) "1 . From what existing Grayson County Fund or funds can monies be legally expended to acquire land, easements or rights-of-way needed for the U. S. Department of Agriculture Soil Conservation Service In connection with construction ‘of water control and sol1 conservation structures? “2. ,Fromwhet existing Grayson County fund or funds can nonles be legally expended for the malnterance of water control and soil conservation structures constructed by the U. S. Department of Agriculture Sol& Conservation Service? “3 . If your ruling is that Grayson County has no existing funds from which the above expendi- tures can be made, then what is the degree of lia- blllty of the County Auditor and the’suretles on his bond, If said auditor approves warrants llle- gaily drawn on existin& county fundsF Your letter also informs us that Gra son County has not oomplled With the provisions of Article 7d 8a of Vernon’s Civil Statutes, which provides in part as follows: "SBC. 2. From and after January 1, 1951, the several counties of the State be and they are hereby. authorized to levy, assess and collect ad valoren taxes upon all property within their respective boun- daries for county purposes, except the first Three Thousand Dollars ($3 000) value of residential home- steads not to exceed thirty cents (304) on each One Iiundred Dollars ()lOO) valuation in additior? to all other,ad valorem taxes authorize 4 by the Constitution of the State, provided the revenue therefrom shall be for Farm-to- 5807 Xonorable Dean Martin, page 3 (~~-1382) I,. . . "S8C. 5. Thefunds transferred to the Flood Control Funds shal.3 be under the juris- diction and control of the Commissioners Court of such county and shall be uaed solely for Flood Ccntrol purposes. All or part of said funds may be used in connection with the plans and programs of the Federal Soil Conservation Service and the State Soil Conservation Dis- tricts and the Statr Extension Service, Conser- vation and Reclamation Mstricts, Drainage provided that such plans for improvement are' ;;rnT8d by such county and political subdivi- . (Emphasis added) In dttCEn8y Ceneralls Cplnion NO. VW-595 (19591, the writer was ccncerned with the situation wherein the Kavarro-Hill County Soil Conservation District had not complied with the pro- visions of Article 7dt8a OS Vernon's Civil Statutes, but desired to construct and maintain dams nevertheless. Since no county tax funds were therefore 1evieA for this purpose,'the opinion held as follows: 9avarro County can 9 end tax money to maintain dams conetructed % kvarro county by the Kavarro-HI11 Soil Conservation District un- In addition Opir&n N-596 (1959) also held that funds could not be expended for the maintenance of soil conservation projects Mess there was ‘a comsllacce with the provisions of Ar- tic18 7C48a. Honorable Dean Martin, page 4 (W-1382) Subsequent to the release of the above cited OPiniOnS, the Legislature passed Article 1109k and in Section 3 of said statute specifically authorized the Aisbursement of Permanent Improvement Funds for carrying out the pUI’pOS8S of the Act. However, an inspection of that statute leads US to the COnClU- sion that its provisions were to apply when a soil conservation di ri t water control and improvement district or drainage ?iz%& had been created. No such district having been created in Grayson County, it follotls that the provisions of Article 1109k. do not apply. For the above stated reasons Article 1581e is likewise inapplicable. After a consideration of the above authorities, we ad- vise you that Article 7C48a represents a detailed method for the establishment and maintenance of Vater control and soil conser- vation structures, and that no tax money may be expended for the purposes outlined in your letter unless taxes were levied pur- suant to the provisions of Article 7048a and for those purposes. Many opinions from this office have held that disbursements may not be made from the General or Permanent Improvement Funds for the purposes outlined in our letter. Attorney General Is Cpin- ions Nos. O-37 (19391, 0- c 13 (1939)) and O-629 (1939). Since Grayson County has no Flood Control Funds, you are therefore advised that Grayson County has no funds available for purchasing land and rights-of-way or for the maintenance of water control and soil conservation s c ructures. Your first and second qUeStiOnS are accordingly answered negatively. As to your third question, If the County Auditor ap- proves warrants drawn on the four constitutional funds to pay for any items in conjunction with the water control and conservation structures, it follows that such disbursements were unauthorized by law and consequently illegal. After the County Auditor has assumed his office by mak- ing bond and taking an oath according to the provisions of Arti- cle 1649, he is governed by Article 1651 which provides in part as follows: “The Auditor shall have a general oversight of all the books and records of all the officers of the County, district or state, who may be authorized or required by law to receive or collect any money, funds, fees, Or other property for the use of, or belonging to, the county; and he shall see to tb strict enforcement of the law aoverni2lg county finan- a.” (Emphasis added) In addition Article 1653 states as follows: 5808 Nonorable Dean Hartin, page 5 (w-1382) “He shall have continual access to and shall examine all the books accounts reports, vouch- ers and other records’of any officer, the orders of the commissioners court, relating to finances of the county, and all vouchers given by the trus- tee of all common school districts of the county ma shall inauire into the correctness of same.” (Emphasis adLed) Artiole 1660 states‘as follows: “9ill claims bills ard accounts against the county must be filed in ample time for the auditor to examine and approve same before the meetings of the ccmmissloners court. No claim bill or account shall be allowed or paid until it has been examined and approved by the county auditor. The auditor shall examine the same ard stamp his approval thereon. If he deems it necessary, all such ac- counts, bill,‘or claims must be verified by affida-. vit touching the correctness of the same. The auditor Is hereby authorized to adninister oaths for the purposes of this law. It Article 1661 states as follows2 *less it has baen contracted as nrovlaed bv la::, nor any account for the purchase of supplies or materials for the use of said county or any of its z;f;kFs unless;ln addition to other requirements there is attached thereto a requisition slgned’by the officer ordering same and approved by the county judge. Said requisition must be made out and signed and approved In triplicate by the said officers the triplicate to remain with the officer deslr&g the purchase the duplicate to be filed with the county auditor, and the orlgiral to be delivered to the party from whom Said pur- chase is .to be made before any purchase shall be made. All Warrants on the county treasurer, ex- cept warrants for jury service, must be counter- signed by the county audltor.VB (Emphasis added) Under these rules it is ok opinion that the County Auditor ana the sureties on his bond are liable for the amount of c!oncy or disbursements he a?)proved !:ithout. proper authority. This conclusion results from a*vlolotion of the terms of his bond %onditionod for the fait!tiul performance of his duties,” Honorable Dean Martin, page 6 NW-1382) as required by Article 1649. .OpiaiOn PO. O-4715 (1942)..' And 153 S.W.2d 2% (Civ.App. 19'tl); 2 S.W. 291 (Clv.App. 1917, error Yref. Since Grayson Count has not oomplied'with the provisions of Article 70s 8a of Vernon's Civil Stat- utes, there are no existing funds that my be ex- pended for the purchase of land or maintenance of water oontrol and soil conservation structures con- structed by the U. S. Department of Agriculture Soil Conservation Service. If the County Auditor approves Illegal and u& authorized disbursements drawn on existing county funds, hsand the suretles on his bond are liable for the amorrnts Illegally expended. Yours very truly, WILL WILSGN Attorney General of Texas APPRGVED: OPINIONCOML3ITTE& W. V. Geppert, Chairman 'Malcolm Quick Mar an Nesbitt Dudfey M&alla REVIXWED~FGR THEATTGRNEYGE~PAL BY8 Leonard Passmore