Mr. R. L. Dunbar              Opinion No. M-696
County Auditor
Montague County               Rer     Authority of Commissioners
Montague, Texae 76251                 Court to pay for publication
                                      of plat in the absence of
                                      budgetary authority and
                                      declaration of emergency,
Dear Mr. Dunbara                      and under stated circumstances.

 .        You have advised us in your recent letter that on
October 13, 1969; the Commissioners Court of Montague County.
by order duly recorded in the minutes of the Court, redistricted
Montague County into voting precincts under authority of Article
2.04 of the Election Code of the State of Texas.

          You state that in accordance with Article 2.04 the
Commissioners Court published its order in the issues of October
23, 30 and November 6, 1969, of,a newspaper published in Montague
County, and that such notice gave a description of the boundaries
of the newly formed voting precincts in compliance with Article
2.04.

          You further state that in the first  week of May, 1970,
hdiately    prior to the primary election, the county commis-
sioners, without an order of the Conrmiseioners Court having been
Previously entered, caused a plat to be published in another
newspaper published in Montague County, said plat being published
in two issues during the same week., and that the plat reflected
the boundaries of the newly formed election precincts in only
the southern half of,the  county. Thereafter, on May 11, 1970,
the Conuaissioners Court, by a majority vote of 3-2, retroactively
authorized the publishing of the plat in the second newspaper in
May, 1970; and that now the County Auditor refuses to approve the
publishers account.



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lb. R. L. Dunbar, page 2       (M-696)




          You have inquired whether the county auditor may
lawfully approve payment of the account and whether the county
may lawfully pay the account.

          In prescribing that certain publicationsmust be made
relating to a change in the voting precincts,'
                                             Article 2.04
merely prescribes the minimum publicationthat is required under
the statute. This minimum is mandatory. Attorney General's
Opinion No. O-4623 (1942) and V-266 (1947). The statute does
not purport to limit the publishing of the information. Whether
additionalpublication  of the same or related informationis
made is a disaetionary~matter within the power of the Conunfe-
sioners Court to decide. The statute having expressly provided
that the CommissionersCo&t shall.qive plblicity to the order
redistrictinsthe votinu orecincts. the Court has broad disaetior
in exercisinq that-&.-     Canales-v.Cauohlin, 147 Tex. 169, 214,
S.W.2d. 451 (1948). ,'

          We note that in this instance the first  publication
was made in a newspaper published in the northern end of the
county whereas the second publicationwas made in a newspaper
published in the soutbern end.of the county. We can not say
that the CommissionersCourt could not reasonably reach the con-
elusion that publication in the second paper was'necessaryin
order to reach voters in all parts of the county.,and that the
need for such publication constitutedan emergency. Attorney
General's OpinionNo. O-2498 (1940);'Certain presumptions
attach to the,iralidity of the official acts of the Commissioners
Court, Bemar f3oontv.v~&tlev, 136'Tk. 354, 150 S.W.Zd 980,987
(1941).

       It is our opinion, therefore, that the CommissionersCourt
if it has not already done so, may by proper order put the accoun
covering publication in the second newspaper in line for approval
by the county auditor  and upon such approval the county may pay
the account.




                            -3364-
or. R. L. Dunbar, page 3~         (M-696)



          The court would need to amend the budget under.the pro-
visions for amendment set out in Article 6S9a-11, Vernon'8 Civil
Statutes, including a finding of an emergencyand   a statement of
the facts creating. such emergency, as.well as order the publica-
tion of the plat:and payment of the fee for' the publication.

          As authority for the validity of an order amending
the budget and finding 'an emergency after the obligation has
been incurred, we quote as follows fromMorrison   v. Xohler., 207
S.W.2d, 951 (Tex.Civ.App.,1948, error ref. n;r.e..)r

            "We cannot agree with appellants,':contention,
       that the Crder of the Commissioners' Court-of     Decem-
  .‘,-ber 9, 1946 ,:ainending the budget'for.the. sewera3.
                                      'is'void.. for.tbe reason
       cbrmniasioner's'~~~road'$re'cincte
       that on such date no emergency then existed authors
       izing such amendment because the services of the en-
      gineers, for which the amendment was made to cover. had
       already been performed. We.find nothing in the budget
       law requiring the budget be amended at the time or be-
       fore an obligation. not .included:in the budqet.could be
       legally assumed. we feel that it would be altogether
       too strict.a  construction to place upon the prwisions
       of the budget laws governing counties to require that
      the budget'should be%amended at.,the time.the obligation
      was incurred. On. the.contrary..we believe that ~&he
      Commissioners' Court in amending any budget to cover
      any item of.'expense not ~already..covered ,in the .original
      budget should ;becontrolled by the facts and air-m-
      stances as existed at the time the obligation was in-
       curred or aasumed. Since the amendment of the budget
       in question was madeto .take care of and provide for
      payment for services theretofore rendered, the.question
       of whether an emergency authorizing the amendment of
      the budget existed, it was proper. for the Commiaaioners'
      Court to be governed by the facts and.circumstances,




                              -3365-
Mr. R. L. Dunbar, page 4         (M-696)




     existing on the date of the original employment,
     and when this is done we feel that a sufficient
     showing of an emergency authorizing the amendment
     of the budget in queetion was made. See Soears v.
     Citv of South Houston, 136 Tex. 218, 150 S.W.2d 74,
     and cases there cited."

           For additional authority to the effect that a Com-
missioners Court may ratify that which it could approve in the
first instance, see Attorney General's Opinions Number M-635
.(1970), WW-1332 (19621, M-164 (1967), and C-156 (1963), and
the cases cited therein.

           To the extent that it conflicts with this opinion,
Attorney General's Opinion Number O-6132 (1944), is hereby
overruled.


                       SUMMARY

          It is within-the discretionary power of a
     commissioner's court to elect to order publication
     of information relating to the redistricting of
     the county into voting precincts which is in ad-
     dition to the minimum publication required by
     Article 2.04 of the Election Code of Texas.

          Attorney qeneral's Opinion No. O-6132 (1944)
     is overruled to the extent of any conflict with
     this opinion.

          The commissioner's court may by an order
     passed subeequently to the incurring of an obli-
     gation for such additional publication amend the
     budget and find an emergency so that the county
     auditor may apprwe   and the county may pay the
     account for such publication
                                 n
                                    truly yo 8,

                                                     .
                                            P " ct=
                                           &     N
                                           neral of Texas

                             -3366-
Mr. R. L. Dunbar. page 5             (M-696)



prepared by James 6. Swearinqen
Assistant Attorney General

Kerns Taylor, Chairman
W. E. Allen, Co<hairman

Austin C. Bray, Jr.
Gordon Cass
Terry Roberts
Max Hamilton

MEADEF.  GRIFFIN
Staff Legal Assistant

ALFREDwALxER
Executive Assistant

NOLA WHITE
First Assistant




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