                              January 10, 1939

Mr. R. A. Courtney
County Auditor
Angelina County
Lufkin, Texas            Opinion No. O-38
                         Re: Right.of Commissioners'
                             Court to contract for a
                             special audit df County
                             books.
Dear Mr.,Courtney:
               Your request for an opinion as to the right
of and the authority of the Commissioners' Court to con-
tract for a special audit of County books has been received
by this department.
               The County budget law, Article 689a, Ver-
non's Annotated Civil Statutes, Section 11, provides,'in
effect, that no ~expenditu'res
                             of County funds shall be
made except In strict compliance with the County budget,
providing that emergency expenditures may be authorized
from time to time by the Commissioners' Court by way of
amendments to the original budget. However, the emergency
must be such as is provided for in the statu~teand to meet
unusual and unforeseen conditions which could not have been
included in the original budget by reason of diligent
thought and attention.
               Article 1641, Revised Civil Statutes, pro-
vides:'
               "Audit by accountant. -- Any com-
     missioners court, when in its judgment an
     imperative public necessity exists therefor, .
     shall have authority to employ a disinterested,
     compe,tentand expert public accountant to audit
     all or any part of the books, records, or ac-
     counts of the coun,ty;or of any district, county
                .?=+
                                           ,y)
Mr. R. A. Courtney, January 10, 1939, Page 2



     or precinct officers, agents or employes,
     Including auditors of the counties, and
     all government units of the county, hos-
     pitals, farms, and other institutions of
     the county kept and maintained at public
     expense, as well as for all matters re-
     lating to or affecting the fiscal affairs
     of the county. The resolution providing
     for such audit shall recite the reasons
     and necessity existing therefor such as
     that in the judgment of said court there
     exists official misconduct, willful omission
     or negligence ,in records and reports, mis-
     application, conversion or retention of
     public funds, failure in keeping ,acc6unts,
     making reports and'accountlng for public
     funds by any officer, agent, or employe of
     the district, county or precinct, including
     depositories, hospitals, and other public in-
    -stltutlons maintained for the public benefit,
     and at public expense; or,that In the judgment
     of the court, it is necessary that it have the.
     information sought to enable it to determine
     and fix proper appropriation and expenditure
     of public moneys, and to ascertain and fix
     a just and proper tax levy. The said reso-
     lution may be presented,in writing at any
     regular or called sessionsof the com-
     missioners court, but shall lie over to the
     next regular term of said court, 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 in three public places in said county,
     one of which shall be at the court house door,
     for .at least ten days prior to its adoption.
     At such next regular term said resolution
     shall be adopted by a majority vote of the
      four commissioners of the court and approved
     bye the county judge. Any contract entered
      into by said commissioners court for the audit
     provided herein shall be made in accordance
     with the statutes applicable to the letting of
      contracts by said court, payment for which may
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Mr. R. A. Courtney, January 10, 1939, page 3


     be made out of the public funds of the county
     in accordance with said statutes. The au-
     thority conferred on county auditors contained
     in this title as well as other provisions of
     statutes relating to district, county and pre-
     cinct finances and accounts thereof shall be
     held subordinate to the powers given herein
     to the commissioners' courts (ACtS 1923, p0
     170)*"

               In view of the foregoing authorities, it is
my opinion that the Court did not exceed its authority in
awarding this contract provided the conditions existed and
the procedure was followed as prescribed in Article 1641.
However, unless there was imperative public necessity for
such action the Court would have no authority to make such
contract. According to the county budget law, any expen-
ditures of county funds should be provided for in the budget
or by way of amendment to the original budget and, in the
event themoriginal budget or some amendment thereto does not
provide for such expenditures, the same could not be legally
paid out of the County Funds.
               Trusting that the foregoing answers your
inquiry, I remain
                                  Respectfully yours
                             ATTORNEYGENERAL OFTEXAS


                             BY      Ardell~~Williams
                                           Assistant
AW:AW
APPROVED:
Gerald C. Mann
Attorney General of Texas
