          THE    ATTORNEY           GENERAL

                      OF    TEXAS




                      November 24, 1959


Honorable Charles L. Reynolds
County Attorney
Childress County
Childress, Texas              Opinion No. W-74;
                              Re:   Who determines ade-
                                    quacy of transporta-
                                    tion and whether a Com-
                                    missioners' Court may
                                    compensate a Sheriff
                                    under Subsection (c)
                                    when transportation is
                                    furnished under Sub-
                                    section (a) of Article
                                    6877-1, Vernon's Civil
Dear Mr. Reynolds:                  Statutes.
      We quote from your recent letter:
          "Childress County, Texas, is a county
      whose officers are compensated on a salary
      basis. The county owns two automobiles that
      are used exclusively by the SherSff and his
      deputies and all expenses incidental to the
      upkeep and operation of both automobiles are
      paid for solely by the co,untyunder the pro-
      visions of Subsection (a) of Article 6877-1,
      Vernon's Texas Civil Statutes. Recently, one
      of the two automobiles was being repaired and
      was out of service, clurj~ng
                                 which time the Sher~
      iff used his personal automobile for officials
      business. The other county owned automobile
      was available and was used for official county
      business during that per;.odof time. The
      Sheriff has submitted his sworn statement of
      claim against the county for reimbursement of
      transportation expenses incurred in the use of
      his personally owned automobile for official
      county business during this period of time.
      The Comm.jssioners'Court was not apprised of
      the transportation situation until the
Hon. Charles L. Reynolds, page 2 (WW-743)


      Sheriff's claim was submitted to it, and
      naturally had taken no action with re-
      spect to either a,uthorizingor denying the
      use of the Sheriff's personally owned auto-
      mobile for official cou~ntybusiness, and
      the Court is of the opinion that during
      the period of time in question there was
      no emergency requiring the use of any trans-
      portation other than the county owned auto-
      mobile available for use.
          "Action by the Commissioners' Court on
      the claim is being held pending your formal
      opini~onas to:
          "1. Who shall determine what is adequate
      transportation?
          "2 . Is it mandatory that the     Commissioners
      Court pay this claim?
          “3 . May the court in its discretion allow
      the Claim?
          “4 . Is the   hurt   prohibited from approving
      the claim?"
      Article 6877-1, Vernon's   Civil   Statutes,   provides
in part as follows:
          "The County Commissioners Courts of this
      State are directed to supply and pay for trans-
      portation of sheriffs of their respective
      counties and their deputies to and from points
      within this State, under one of the four (4)
      following sections:
          "(a) Such sheriffs and their deputies shall
      be furnished adequate motor transportation in-
      cluding all expense incidental to the upkeep
      and operation of such motor vehicles.
          "(b) Motor vehicles shall be furnished to
      such sheriffs and their deputies who may furnish
      gas and oil, wash and grease, incidental to the
      operation of such vehicles; for which gas and
      oil, wash and grease, such sheriffs and deputies
      shall be compensated at a rate not to exceed four
.




    Hon. Charles L. Reynolds, page 3 (WW-743)

          cents (4$) per mile for each mile such
          vehicle is operated in the performance of
          the duties of his office.
              "(c) Alternatively such County Com-
          m?ssioners' Courts may allow sheriffs
          and their deputies in their respective
          counties to use and operate cars on of-
          ficial business which cars are personally
          owned by them for which such offl~cersshall
          be paid not less than six cents (6#) per
          mile nor more than ten cents (lOa) per
          mile~for each ~mlletraveled in the per-
          formance of official duties of their
          office."
          In answer to yo’ur first question, it is for the Com-
    missioners' Court to determine what is "adequate motor
    transportation' within the meaning of Subsection (a) of
    the above statute. The Commissioners' Court is given the
    statutory duty to,provide such transportation. Implied
    authority exists in the Commissioners' Courts to do what
    may be necessary to exercise the duties and powers con-
    ferred upon them; Anderson v. Wood, 137 Tex. 201, 152
    S.W. 2d 1084 (1941); Canales v. Laughlin, 147 Tex. 169,
    214 S.W. 2d 451 (1948). Manifestly the Commissioners'
    Co,urtmust determine what "'adequatemotor transportation"
    is if the Court is to furnish such transportation.
          Moreover, Section 18 of Article V of the Constitution
                                     I Courts powers and juris-
    of Texas confers on Comml.ssioners
                         business." The subject determination
    diction over "cou~n'ty
    clearly falls within the p'urviewof 'county business."
          However, such determinations are subject to judicial
    review by the District Court in a proper suit for such pur-
    pose. Article V, Secti~on8, Texas Constitution; Article
    1908, Vernon's Civil Statutes; Harris County v. Bassett, 139
    S.W. 2d 180 (Civ. App. 1940, error ref.).
          In answer to your second question, it is not mandatory
    that the Commissioners I Court pay the claim in question un-
    less the Commissioners Co,urtfinds that it has not supplied
    'adequate transportation"'in the situation described in
    your letter and elects to use Subsection (c) of the stat-
    ute.
          We have previously held that the Commissioners' Court
    may not legally supply and pay for transportation of the
Hon. Charles L. Reynolds, page 4 (WW-743)


sheriff and his deputies under more than one of the
three subsections of the statute at a time. WW-707
(1959); V-293 (1947). Therefore, if the Commissioners'
Court is already supplyin "adequate motor transporta-
tion" under Subsection (a7 It cannot allow the claim
in question. If, however, the Commissioners' Court
makes a valid determination that the Court is not fur-
nishing "adequate motor transportation" when one of
the two county owned automobiles is available for use
by the sheriff and the other automobile is not, then
the Commissioners' Court could, and would even have
to, supply and pay for transportation of the sheriff
and his deputies under either Subsection (b) or (c)
of the statute. The Commissioners' Court has a manda-
tory duty to supply and pay for such transportation
under at least one of the three Subsections. V-293 (1947).
      The question of whether the sheriff and his depu-
ties have had adequate motor transportation involves a
factual determination which must be made by the Com-
missioners' Court in the light of many varied factors
that are peculiar to the local situation. Of such
factors the Commissioners' Co,urtis cognizant and this
department is not.
      Based upon the statement in your letter that the
"court is of the opinion that during the period of time
in question there was no emergency requiring the use
of any transportation oth$r than the county owned a~uto-
mobile available for use,  we infer that the court has
fo,undthat "adequ.atemotor transportation" has been fur-
nished to the sheriff. Assuming that such determination
is valid in light of the facts and circumstances present
in Childress County, your third question is, therefore,
answered in the negative and your fourth in the affirma-
tive.       ;
                      SUMMAXY
        Commissioners' Courts determine what
        is "adequate motor transportation"
        within the meaning of Subsection (a)
        of Article 6877-1, Vernon's Civil
        Statutes,  subject to judicial review
        in  a proper case. A claim made ,under
-   .




Hon. Charles L. Reynolds, page 5 (WW-743)


              Subsection (c) of the Statute
              cannot be approved by the Com-
              missioners' Co~ur'c
                                when adequate
              motor transportation is being
              furnished under Subsection (a).

                          Very   truly   yours,

                          WILL WILSON
                          Attorney General of Texas




                             Assistant
HB:me:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. C. Davis, Jr.
Hou.ghtonBrownlee, Jr.
Paul W. Floyd, Jr.
Raymond V. Loftin, Jr.

REVIEWED FOR THE ATTORNZX GENERAL
BYi: Leonard Passrrore
