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