                                                           3C



        OFFICE   OF THE   ATTORNEY    GENERAL   OF TEXAS
                             AUSTIN
QROVCRSELLERS
ATIOINEY
       OmNRAL
lion. C. Simmon8 - Page 2


          “b’ith tNs increase in oifect the Officers
     Salarywouldb the end of 1947be overdrawn     approxi-
     #lately $9,000.50 and no fundsavailable in the General
     Fund to supplement  the SalaryFund.
           “Could this be a legal expendlt,ure, OF should the
     Court be required to keep the expenditures within the
     estimated receipts?n
          In answer to our letter requesting. additional     Information,
you sent us a copy of the following order8
          ,“The State of Texas,
            -County of Henderson:
                “IOn this the 5th day of August AS. 1946 the
     Commissioners Court met in re,-@ar session and also re-
     sumed their duties as a Board of Zqualieation.
                 “‘Anon~ other thlnge the following Foceodings
     were had to wit:    Gn motion made by Commissioner Boatright
     md seconded by Conmissioner 2. D. Larron that salaries
     of County Officials    be increased 255 of their present ml-
     arles and their de uties i;nd em lo ees salaries be in-
     creased 10s of the& present s&a&s,         a vote was taken
     and same was paseed unanino~aly     by the court to become
     effoctlve   on September 1 1946. Tho Auditor was Instructed
     to amend the budget to t&at effect.      The Court moved to ’
     ;$;u~     as en Squall ration Board until Monday, August 12,

                z*~galn on August 26, 1946,order again passed to
      'amnd,bxzdCet raisin:: mlaries  as per order of Court passed
     hg. 5, 1946.'"
             The Comiosioncrsf   Court mst find that the financial      con-
dltlon.of    the county Is such as will permit the proposed Increase in
salary, and must also find that the needs of such officers       justify
t,h; 2~:        before the proposed increase mentioned In your Inquiry
                 This dopartnent has repeatedly held that any‘increase
                 of a QgUWy official    authorleed by S. B. I-23, Acts c&
~$tta#&l;ture             Reg. Scs,   1945 would be subject to the budge’
                 - -- $@a-ll     V.1.C .S. 1 and that in order to rovlde
for such*increaso,     the co&    budget would have to be amende  iiin '
accordance with said budget 1a?:. In connection with the foregoing,
we calJ. your attention to the following.       In the case of Dsnc V.
Davidson, 183, S .;i. 2d 195, (writ refused) the Court stated t he
f ollowlng :
Hon. C. Simon6   - ?aze   3



           “The order of the Comissionere~       Court referred
     to in the stipulation    is t!:at eet forth (insofar as
     naterial parts are concerned) in the forcpart of this
     opinion.    Srlofly stated, the order deirlarus that (1)
     there exSat6 a neoescity’ for Gazeron Count to acquire
     a building in San Benito, (2) that the bui 1 ding owned
     by Itis. Jennie 3. 3011 is suitable      for the County’a
     needs, (3) thct the price asked thsrefor is reasonable
     and fair,   (4) that the. Count has current funds not
     othemise ap ropriated,     suff 1 cient to purchase the
     property,   (5 P that Yzs. Bell be’paui j37,5GO.30 by
     warrant of the County Treamrer         upon ap roval of title
     and delivery of deed, end that 16) *the E96 budget be
     amended to include collecteci though unanticipated
     reveuues * and to include this e-xpenditure.’
           J J,.a+2.:

            “It can hard>; be contended that the order of April
     29 1944, in itself     effected au amendment of the !9l$+
     bu&ct. 21 fact. the ox& does not cv
     &&t the LIIILBr;‘:Bncv-one         set fort& in Che atatutq
     a nuthor$&1. an me dment or‘the buti.etdo in f ct
     f&g&.     It nix have bzen contomlated      by the Com&sionersl
     Court that s&e furthar order h4th reference to the county’s
     budget vou.Id be entered.      This is augr;ested in sgixllsntsl
     brief.    However tiiat nay be, the order of ApriI 23, 1944,
     Is insufficient   l.u itself   (and there la no further order
     in the record) to authorice the deliver        of a county war-
     rant for the sum of 337,500 to Xrs. Be1P. It follows that
     the fnjumtlon    issued reatrainine    the pa     t of the county’s
     funds to her under snd by virtue of the E”      ”
                                                    oxmissioners’   Court
     order of April 29, 1944, was properly 16mcd.!’         (Emphasis
     ours 1
             held In our Opinion No. 0-5053-A :
          'k*e
           “This de ertnent has re atedly held ti.at the question
     of *,Tave pubElc necessity’ r a a fact question to br: de-
     termined primarily by the coimi66ioner6r court.      It Is
     apparent from your letter that your position is that no
     ‘grave public neoesaitst    existed at th6 time the county
     budget was amended to take care of Increase in salaries
     for certain county officials     and therefore the oonmiaslon-
     era’ court was unauthorized to nake such amendment. Hmmr6r,
Hon. C. Simmons - Page 4


     on t&e other hand it is apparent that the comis-
     sloners* court did decidm that they were legally
     authorlsed to smend the county budget and In fact
     did amend said budget.
           vThl8 department has held (Opinion No. O-2315)
     that the discretion   of the commissioners* court is
     not absolute authority to expend count fuuds lu the
     case of en emergenc     and Is final,  o ny:y where the
     question is debatab 31’
                           e or where the existence of an
     emergency is unquestionable.    However, said court has
     no authority.to   determiue snd declare that sn smsr-
     genoy exists,   and expend county funds therefor,    where
     the facts clearly show the contrary.      Such court has
     no legal authority to declare au emergency and evade
     tie law, where in fact, no emergency exist8.w
            In view of the foregoi        It is the o inion of this de-
partment that the Cof!m&sioners’ T’ourt Is unaut Rorised to make the
expenditures mentioned by you unless It finds, In their judgment,
the financial    condition of the county and the needs of the officers
justify the increase     in compensation.    The Comulaslonersl Court
must make such expenditures “In strict       compliance with the budget
law except emergent expenditures In the case of grave ;3ubl5.c neces-
sity to meet unusuaI and unforeseen conditions which could not by
reasonable,   diligent thought and attention have been Included in
the original budget*.
             On the basis of the lsnguage contained in Da&cy v. Davidson,
it, is our further opinion thnt the order of the Commlsslonerst Court
which ou have sent us does not authorlsa the proposed increase in
the s aI arise of the various county officials   since ~sald order does
not contain findings that the emsrgenoy conditions set forth in the
budget law authorizing an amendmentto the budget do In fact exist.
                                           Yours very truly
                                       Al’TOBI’E~   GENiZULOF TlZiS




                                            Assistant



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