                                                                             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
