Honorable W. P. Herms, Jr. Opinion No. O-6519
County Auditor Re: Under the given facts is the Com-
Waller county missioners’ Court of Wailer
Hempstead, Texas County within its authority in
employing an independent auditor
to audit the books of the County
Dear Sir: Auditor ? And other questions.
Your request for an opinion on the above questions reads
as follows:
“Please find inclosed a copy of the final report
of tialler County Grand Jury, recently adjourned.
“Also inclosed, please find Commissioners’
Court orders of some 2 months later, dated June 11,
1945, and June 18. 1945.
“There is no provision in our Budget for the ex-
penditure of funds for such audit. Our Budget has not
been amended, nor has an emer~gency been declared in
anticipation of amending same.
“I shall greatly appreciate your kindness in ren-
dering an opinion on the following questions:
“1. Is Commissioners’ Court within its authority in
employing an independent auditor to audit my
books ? I am appointed by District Judge after
Commissioners’ Court declared an Auditor a
public necessity, county population 13% million.
“2. Am I authorized to approve a warrant for the
payment of such independent auditor employed
by the Commissioners’ Court when there is no
provision in the budget for such expenditure,
and such budget has not been amended ?
u3. Under the circumstances, would Commissioners’
Court have authority to amend said budget, this
not being a matter of inadequate funds for some
,item already set up in the budget, but for an en-
tirely different and foreign item to anything con-
tained in the budget?
c
Hon. W. P. Herms, Jr., page 2 (O-6519)
“4. The reason given for such audit is based on
fallacy, since my records contain, and my
periodic reports, filed with the County Clerk,
and handed to the Commissioners’ Court, con-
tain all the information which could possibly
be necessary to levy a proper tax. The Grand
Jury report bears out this contention. Under
these cirucmstances, what is my recourse ?
“5. If you will do so, I shall greatly appreciate any
general suggestion on this matter, which, in
your opinion, I can legally justify.”
The order of the Commissioners’ Court of Waller County,
dated June 11, 1945, is as follows:
“THE STATE OF TEXAS1
COUNTY OF WALLERI
“IN THE COMMISSIONERS’ COURT OF WALLER COUNTY, TEXAS,
JUNE TERM, A. D. 1945.
“ORDER
“BE IT KNOWN THAT WHEREAS, at a regular meet-
ing of the Commissioners’ Court of Walle,r County, Texas,
held on the 14th day of May A. D. 1945, all members of said
Commissioners’ Court being present and voting a resolution
was unanimously passed, dated on said date and recorded in
Book J. Page 68, of the Minutes of the Commissioners’ Court
of Waller County, Texas, to employ a disinterested, compe-
tent and expert accountant under the provisions of Article
1641 of the Revised Civil Statutes of the State of Texas, to
audit all the books, records and accounts of Wailer County
and all of the books, records and accounts of the County
Auditor of Waller County, who shall furnish said Commis-
sioners’ Court with such information which will enable it to
determine and fix proper appropriations and expenditures of
public moneys and to ascertain and fix a just and proper tax
levy for Waller County, Texas;
“AND WHEREAS, the Clerk of the County Court caused
said resolution to be published in one (1) issue of ‘The Hemp-
stead News,’ a newspaper of general circulation published in
Waller County, in accordance with said resolution and the law
relative to the publication of such notices;
“AND WHEREAS, on this the 11th day of June, A. D.
1945, at a regular meeting of said Commissioners’ Court,
Hon. W. P. Herms, Jr., page 3 (g-6519)
and after publication as aforesaid, came on to be con-
sidered in ,open court the appointment of such auditor for
the purposes set forth in said resolution; and it appearing
to the dourt that no objection or opposition to the employ-
ment of such auditor has been formally filed with the Com-
missioners’ Court and no objection voiced EXCEPT a pro-
test in the form of a letter addressed to each Commissioner
of Wailer County, Texas, by W. P. Herms, Jr., County Au-
ditor of Waller County, Texas; and it appearing. after due
hearing, that no good cause is shown why such audit should
not be made; and it affirmatively appearing to the Court
that the antagonistic attitude of said county auditor toward
this court and the lack of confidence of this court in the
ability of the said W. P. Herms~, County Auditor of Waller
County, Texas, renders it utterly impossible for it to prop-
erly determine and fix appr,opriations and expenditures of
public moneys and to ascertain and fix a just and proper
tax levy; and the court further finding that, after such pub-
lication and notice,, it has not been furnished with complete
information such as would enable it to fix proper appropria:
tions and tax levy; and the court further finding that an im-
perative public necessity exists for an independent audit of
all books, records and accounts of Wailer County and all
books, records and accounts of the auditor of Wailer County,
audited in accordance with the provisions of Article 1641 of
the Revised Civil Statutes of the State of Texas, to enable the
court to determine and fix proper appropriations and expend-
itures of public moneys and to ascertain and fix a proper and
just tax levy;
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DE-
CREED by the Commissioners’ Court of Waller County, Texas,
in open court, at a regular session held on the 11th day of June,
A. D. 1945, that a disinterested auditor be employed to make an
audit of all books, records and accounts of Wailer County and
all books, ret-ords and accounts of the county auditor of Wailer
County, and to provide this c’ourt with complete infor’mation to
enable it to determine and fix proper appropriations and expend-
itures of public moneys and to ascertain and fix a proper and
just tax levy.
‘“IT IS FURTHER ORDERED that the contract for such
audit be let in the manner provided by the statutes applicable
to the letting of contracts by this court, and the payment there-
for shall be made out of the public funds of said county, in ac-
c~ordance with said statutes, currently available for such pur-
pose.
Hon. W. P. Herms. Jr., page 4 (O-6519)
“A. B. Anderson. County Judge,
A. M. Wallingford. Commissioner, Pct.1
R. C. Snow. Commissioner Pet. 2
John H. Schmidt,Commissioner Pct.3
C. A. Wilpitz, Commissioner Pet. 4”
The order of said Court, dated June 18, 1945. is as follows:
“Order of June 18. 1945 - Follow up of order of
June 11. 1945.
“THE STATE OF TEXAS1
COUNTY OF WALLER 1 NOTICE
“NOTICE IS HEREBY GIVEN that, pursuant to an
order of the Commissioners’ Court of Waller County, Texas,
mad~e on the 11th day of June, A.D. 1945, after due notice of
a resolution adopted on the 14th day of May, A.D. 1945, of
said court’s intention to employ a disinterested, competent
and expert accountant under the provisions of Article 1641
of the Revised Statutes of the State of Texas to audit all books,
records and accounts of Waller County and to audit all books,
records and accounts of the county auditor of Waller County,
the Commissioners’ Court will receive bids on the 9th day of
July. A. D. 1945, from any and all duly qualified, disinterested,
competent and expert accountants wishing to file their bids for
contract to audit all books, records and accounts of Waller
County, and all books. records and accounts of the county au-
ditor of Wailer County and to furnish such Commissioners’
Court with such information as will enable it to determine and
fix proper appropriations and expenditures of public moneys
and to ascertain and fix a proper and just tax levy for Wailer
County. The contract will be let on sealed bids. All bids shall
be in writing addressed to the Commissioners* Court of Waller
County, Texas, and shall be accompanied by a statement show-
ing the qualifications of the bidder. The Commissioners’ Court
of Waller County reserves the right to reject any and all bids
if the terms and conditions thereof are not deemed fair and
satisfactory. The contract is to be let to the lowest compe-
tent and responsible bidder.
“A. B. Anderson
. a Anderson, Judge of the
County Court of Walier County,
Texas.*
Article 1641 of Vernon”s Annotated Civil Statutes, provides:
Hon. W. P. Herms, Jr.,‘page 5 (o-6519)
*Any commissioners’ court, when in its judgment
an imperative public necessity exists therefor, shall .have
authority to employ a disinterested, competent and expert
public accountant to audit all or any part of the books, rec-
ords, or accounts of the county; or of any district, county
or precinct officers, agents or employees, including audi-
tors of the counties, and all governmental units of the coun-
ty, hospitals, farms, and other institutions of the county
kept and maintained at public expense, as well as for all
matters relating to or affecting the fiscal affairs of the
county. The resolution providing for such audit &al,1 re’:,
cite the reasons and necessity existing therefor such as
that in the judgment of said court there exists official mis-
conduct, willful ommission or negligence in records and
reports, misapplicaxon, conversion or retention of pub,-
lit funds, failure in keeping accounts, making reports and
accounting for public funds by any officer, agent or em-
ployee of the district, county or precinct, including deposi;
tories, hospitals, and other’ public institutions maintained
for the public benefit, and at public expense; or that in the
judgment of the court, it is necessary that it have the in-
formation sought to enable it to determine and fix proper
appropriation and expenditure of public moneys, and to as-
certain and fix a just and proper tax levy. The said reso-
lution may be presented in writing at any regular or called
session of the commissioners court, but shall lie over to
the next regular term of said c~ourt, and shall be published
in one issue of a newspaper of general circulation published
in the county; provided if there be no such newspaper pub-
lished in the county, then notice thereof shall be posted, ins
three public places in said county, one of which shall be at
the court house door’, for at least ten days prior to its adop-
tion. At such next regular term said res,olution shall be
adopted by a majority vote of the four commissioners of
the court and approved by the county judge. Any contract
entered into by said commissioners court for audit provided
herein shall be made in’accordance with the statutes appli-
cable to the letting of contracts by said court, payment for
which may be made out of the public funds of the county in
accordance with said statutes. The authority conferred ,on
county auditors contained in this title as we11 as other pro-
visions of statutes relating to district, county and precinct
finances and accounts thereof shall be held subordinate to
the powers given herein to the commissioners’ court.”
It is our opinioixthat the above statute authorizes the Com-
missioners’ Court of Waller County to employ an independent auditor to
audit your books when, in its judgment, an imperative public necessity
exists therefor. The Commissioners’ Court is not given the authority to
P
Hon. W. P. Herms. Jr;. page 6 (O-6519)
determine that an imperative public necessity exists for such audit under
any and all circumstances, as the above statute lays down certain condi-
tions which must of necessity exist and constitute reasons for the court’s
,determining that such imperative public necessity does exist. However,
it is within the authority of the Commissioners’ Court to determine wheth-
er or not there are sufficient facts to constitute an imperative public ne-
cessity for such audit under the requirements of said statute.
As to whether you are authorized to approve a warrant for
the payment of such independent auditor employed by the Commissioners’
Court when there is no provision in the budget for such expenditure and
such budget has not been amended, we here quote and adopt the following
from our Opinion No. o-5184:
“Article 689a-9, Vernon’s Annotated Civil Stat-
utes provides for the preparation of the county budget.
“Article 689a-10. Vernon’s Annotated Civil Stat-
utes provides that when the budget for the county has been
prepared and completed a copy of the same shall be filed
with the clerk of the county court, available for the in-
spection of any taxpayer.
“Article 689a-11, Vernon’s Annotated Civil Stat-
utes, reads in part as follows:
“‘The commissioners* court in each county shall
each year provide for a public hearing on the coun-
ty budget . . . which hearing shall take place on
some date to be named by the commissioners’court
subsequent to August 13 and prior to the levy of tax-
es by said commissioners’ court. Public notice
shall be given that on said date of hearing the bud-
get as prepared by the county judge will be consid-
ered by the commissioners’ court. Said notice shall
name the hour, the date and the place where the hear-
ing shall be conducted, any taxpayer of such county
shall have the right to be present and participate in
said hearing. At the conclusion of the hearing,
the budget as prepared by the county judge shall be
acted upon by the commissioners’ court. The court
shall have authority to make such changes in the
budget as in their judgment the law warrants and
the interest of the taxpayers demand. When the bud-
get has been finally approved by the commissioners’
court the budget as approved by the court shall be
filed with the clerk of the county court, and taxes
levied only in accordance therewith. and no expend-
iture of the funds of the county shall thereafter be
made except in strict compliance with the budget
Hon. W. P. Herms, Jr., page 7 (O-6519)
as adopted by the court. ,Ex,cept that ,emer-
genc.y expenditures, and cases of grave ,pub-
lit necessity, .to .meet unusual and unforeseen
conditions which could not, by reasonab,le dil-
igent thought and attention have been included
in the original budget, may from time to time
be authorized by the court as amendment to
the original budget. In all cases where, such,~
amendment to the original budget is made,,a~
copy of the order. of the court amending the
budget shall be filed with the clerk of the cotin-
ty court, and attached to the budget originally ,~
adopted.’
“Article 689a-20, Vernon*s Annotated Civil Statutes.
provides,as follows:
.,
“‘Nothing contained in this Act shall be ‘construed
as precluding the Legislature from making c,hang:
es in the budget for State purposes or prevent the
County Commissioners’ Court from making chang-
es in the budget for county purposes or prevent
the governing body from making changes in the
budget for school purposes; and the duties re-
quired by virtue of this Act of State, County. City
and School Officers or Representatives shall be
performed for the c~ompensation now provided by
law to be paid said officers, respectively.’
“‘In construing the foregoing provision (Article 689a-20)
this department has repeatedly held “we are, of the opinion,
upon considering the act as a whole. that Section 20, quoted
above, does not authorize the commissioners’ court to make
changes so as to increase the amount of the budget after its
final adoption except in cases of emergency o o 0 We do not
think it authorizes the commissioners’ court to increase the
budget after its adoption. To so hold, would ~destroy the very
purpose of the Act.’ (See our opinion No. O-1053 and an opin-
ion written by Honorable Joe J. Alsup, Assistant Attorney
General dated October 3, 1935.)
“It is stated in our Opinion No. O-3146:
‘““The only way the county budget may’be amended
after its adoption is in strict compliance with the
above statutory provision, This department has
consistently ruled that whether a situation is one
which can be classified as an emergency under the
budget law so as to permit the commissionersP
court to amend the budget, is a question of fact
Hon. W. P. Herms, Jr., page 8 (O-6519)
primarily to be passed upon by the commis-
sioners’ court. See Opinion O-07, O-1022 and
O-1728. Annual Opinion Reports of the Attor-
ney General for 1939. pages 2, 274, and 455,
respectively.
“The quoted statutory provision provides that no ex-
penditure of the funds of the county shall be made after the
budget is finally approved and filed with the clerk except in
strict compliance with the adopted budget. An exception to
the foregoing is made, however, as to ‘emergency expendi-
tures.’
.I
. . .
“Under the facts stated and in view of the foregoing
authorities, you are advised that it is the opinion of this de-
partment that the commissioners’ court of the c~ounty is un-
author~ized to make any expenditures of the funds of the coun-
ty, except in strict compliance with the budget, except emer-
gency expenditures in case of grave public necessity, to meet
unusual and unforeseen conditions which could not, by reason-
able diligent thought and attention, have been included in the
original budget. Such emergency expenditures must be made
in compliance with the proper amendment to the budget by
the commissioners’ court. Whether or not the situations pre-
sented in your inquiry are such as can be classified as a grave
public necessity requiring emer’gency expenditures under the
budget law so as to permit the commissioners’ court to amend
the budget, is a question of fact primarily to be passed upon by
the commissioners’ court.”
Following the rules of law laid down in said opinion, your
second question is answered in the negative.
As to whether the Commissione’rs’ Court would have author-
ity to amend such county budget, we have held in several opinions that,
ordinarily, that is a question of fact primarily to be passed upon by the
Commissioners’ Court. as set forth in the above quotation from our Opin-
ion No.O-5184,aswellas inour OpinionNo.O-5053-A,fromwhichwe quote as
follows:
“As we understand your request. the commissioners’
court of Johnson County has amended the budget of said coun-
ty to take care of certain increases of salary for certain coun-
ty officials. It is our further understanding that it is your con-
tention that as there wer.e no provisions contained in the orig-
inal county budget when it was prepared to take care of any in-
crease in salaries to county officials that the same cannot now
be amended.
Hon. W. P. Herms, Jr., page 9 (0~6519) ,,,
“This department has, repeatedly he.ld that the ques-
tions ‘of ‘grave public necessity’ is a, fact question, to .be de-
termined primarily by~the commiss:ioners’ court. It is a&
parent from your .letter:.that,your ,positiqn iEsthat no ‘grave’
public: necessity’ existed :at the; time the,county~ budget was
amended to take care of increase in salarie,s for certain,
county officials and therefore the commissioners’ court
was unauthorized. to make such amendment. However, on
the othe,r hand it is apparent that the commissioners’ court
did decide that they were, legally auth,orized to ,,, amend the;
county budget and in fact did amend said .budget. _I ,,
‘+This department has held (bpin& No. b-2315) that
the discretion of the commissioners* court is not absolute
authority to expend county funds ,in the case of an e,mergen-.,.
cy, and is, final. only where the ques,tion is ,debatable OCR where
the existence of an emergency is unquestionable. However,
said court has no authority to determine and declare that an
emergency exists, and expend county funds .therefor, where
the facts clearly show the contrary. Such court% has no legal
authority to declare an emerge.ncy and evade the .law, where
in fact, no emergency exists.. , ,~
“Our opinion No. O-1053 defines the m,rm,s ‘grave’,;
and ‘public necessity’. We enclose a copy of this opimon
for ,your convenience. Where: the existence of grave pub-
lic necessity is debatable, the acts of the commissioners
court are contr~olling. Therefore, as above stated, it is
our opinion that whether or not the commissioners’ court ,.
of Johnson County has the authority to amend the county
budget under the facts submitted is a fact question to be ,’
determined primarily by the commissioners’ courLm
It is our opinion therefore,, that the Commis~sione>rs’ Court
has authority to amend the county budget if the provisions of the budget
law are complied with, as above set forth.
We do not express any opinion as to the matters contained
in the copy of the report of the grand jury submitted with your request,
or as to the matters contained in the orders of the Commissioners’ Court
hereinabove set out. As to your recourse, we direct, your attention to the
following part of our Opinion No. o-6220, addressed to youunder data of
October 9, 1944:
*Answering your third question, we advise that if
the Co.mmiesioners9 Court has acted fraudulently or has
arb,itrarily declared the existence of an emergency when
none in.kmt exists. and such actionnn then part of the court
was taken for.the sole’purpose,of evading and circumventing
the law ,regulating budgets amendments. then you would be re-
amiss, in your duties as arrofficer if you did not take appro-
priate action to protect the county funds.
Hon. W. P. Herms. Jr., page 10 (O-6519)
“Your second and fourth questions relate to your
powers and duties under such circumstances in controlling
the fiscal affairs of the county. Article 1651 makes it your
duty to ‘see to the strict enforcement of the law governing
county finances.’ This would certainly include the duty of
enforcing the terms and provisions of the c,ounty budget.
“Article 1660 provides that no claim. bill or ac-
count against the county shall be allowed or paid until it
has been examined and approved by the Auditor. He is pro-
hibited by Article 1661 from auditing or approving any such
claim for the purchase of supplies or materials for the use
of the county or any of its officers unless all requirements
of law are complied with. And finally, Article 1661 provides
that all warrants on the county treasurer, except warrants
for jury service, must be c.ountersigned by the county au-
ditor.
“Your remedy under the law. where the Commis-
sioners’ Court should act illegally in amending the budget,
would br to refuse to audit or approve claims filed under
the attempted amendment and to refuse to countersign war-
‘rants on the county treasurer against funds unlawfully set
aside for the purpose.
“We wish it distinctly understood that we are not ex-
pressing any opinion on whether your hypothetical statement
of facts, absent your own conclus~ions. would amount to an il-
legal abuse of discretion on the part of a Commissioners’
Court. Each case arising must be judged by its own particu-
lar facts.”
The rules of law above referred to are applicable to the situ-
ation you present and contain the only suggestions on the matters submitted
in your request that we are able to make, so it will be up to you to decide
what should be done under the circumstances.
.We trust that this satisfactorily answers your inquiry.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By /s/ Jas. W. Bassett
Jas. W. Bassett
Assistant
JWB:LJ/cm APPROVED
OPINION COMMITTEE
BY /s/ BWB
Charman