.




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    CIP‘,WYQ,IIID c:.Z1,9~,RT~CX                                 ,?--
      ATTOIISKY OISN~l,‘\l.                                                 Iii,* il;:lniOX I
                                                                        : hm-f,;~~   0nir.i~
                                       September    1, 1970      \        I ~-&Qi!~&b-
                                                                     ---a. !/S -$! &$-
          Honorable Jules Damiani, Jr.                  Opinion No. M- 680
          District Attorney
          405 County Courthouse                         Re. Questions relating to the
          Galveston, Texas    77550                         authority of the County to
                                                            pay certain travel expenses

          Dear Mr. Damiani:

              You have requested   the opinion of this office upon the following questions”

              (1) “Does the Commissioners     Court have the authority to author lze
                  travel expenses of another county official (District Clerk), said
                  expenses being incurred while not engaged in the performance      of
                  his official duties imposed upon him by law?”

              (2) “Does the Commissioners     Court have authority under Ar tlcle
                  6145. 1, V C., S., (County H~sror~ical Survey CommIttee) :.Q
                  authorize travel expenses outslde the County for the Chairman
                  of said Historical Su,rvey CommIttee?”

              (3) “Does the Commissioners      Court have authority under Article
                  6081e. V. C. S., (acquisition of 1Ands and buildings for p$rks,
                  playgrounds,   historical museums, and sites), to authorize
                  travel expenses of certain members of a County Museum Board,
                  said Board being appointed by t~he CornmIssioners    Court 10
                  administer,  manage, and set pollcl,es for a county museum?”

                                   GENERAL STATEMENTS

              The County AudItor has refused to approve rhese claims for travel
          expenses even though in each instance t.hey were authorized by t,he Com-
          missioners   Court,  We hold, on the face of the record before u,s. that in
          each instance t:he Commissioners    Cour,t had jurlschctlon of the subjecr
          matter and that each claim is reasonably supported by some evidence           EXh
          was mcul,red XI the operation and puttrng ~!ntoel,lect of specif~:c starutory
          powers conferred upon t.har. Court., We hold rhat~ rhey are valid claims and
          should be paid.

                                               -3246.
.




    Hon. Jules Damiani,     Jr.,   page 2 (M- 680)


         We realize that the approval of the County Auditor is required before
    an order may be entered directing the payment of a claim.      Articles 1660,
    1661. Vernon’s Civil Statutes: Anderson v Ashe. 99 Tex. 447. 90 S. W.
    872 (1906); Wyatt Metal & Boiler Works v. Lipscomb, 87 S. W-.’2d 331
    (Tex. Civ. App. 1935, error ref. ) One of his duties is to determine that each
    claim allowed by the Commissioners’     Court has been contracted as pro-
    vided by law; if be rejects a claim, then the trial court of competent juris-
    diction must pass upon and approve the cYaim before it can be paid.

         We have not found a Texas court decision which declares the weight of
    consideration  to be given to the orders of the Commissioners       Court which
    authorized the traveY expenses, as in the questions under consideration,
    where the County Auditor refuses to approve the claims for these expenses
    after they were incurred,   and prior to the filing of suit on the claims.
    However, even in a direct attack in a court proceeding to enforce a claim,
    an appellate court has held that the order of the Commissioners       Court
    was admissible   “~ . as tending to sustain      ,. ” its statements of contract.
    Falls County .v, Bozeman, 249 S. W. 890 (Tex. Civv.App. 1923, no writ);
    15 Tex. Jur. 2d 378, Counties, Sec. 159. The approval or rejection of
    the claims under consideration,     whether by the Court or by the Auditor,
    involves the exercise of discretion,

         The jurisdiction   of the Commissioners  Court to authpn~rze; in the first
    instance, the travel    expenses, was not subject to approvaY of the auditor.
            11I  I Jurisdiction is the power to decide, ano not
            merely ehe power to decide correct@       u   ”
            Aluminum Co. of America v. Mineral Holding T:r,ust, -
            157 Tex,. 54: 299 S. W. 2d 279. 283 (1954).

    The authority of the County Auditor and his duties under As-riclie 11660appears
    to be in the nature of a concurrent jurisdiction rather than appellate juris-
    dictr,on based only upon zbe record presented vo him.. I5 Tex., Jm. 2d 377,
    Counties, Sec. 159

         Pursuant to these propositions,   our opinkon is that the E !iglnaYdiscretion
    exercised by the Com.m’&sioners Court in filrst authorrzing each of the cYaims
    is to be presumed to be correct and should be sustarned,         if possible. lo the
    same extent and I:0 tI& same eftec:t, under rl;e ffac:t situation before us, as
    though the Attorney General were a reviewing corn?.. Ynthis contex:t the
    following prirrcl~ple; of review applicablie to order,s of Cornmks:shoners Courts
    seem to be weYYe;;tablished,.    They are:

                                           -3247~
Hon. Jules Damiani,   Jr.,   page 3 (M- 680)


     First:  The Commissioners      Court does not have general authority over
county business, but, on the contrary,     has only such powers as are con-
ferred upon it by the Constitution and statutes, ,either expressly or by
necessary    implication.  Childress County v. State, 127 Tex, 343, 92 S. W. 2d
 1011 (1936); Mills County v. Lampasas County, 90 Tex, 603; 40 S. We 403
(1897); Canales v. Laughlin, 147 Tex. 169; 214 S. W. 2d 451 (1948); Anderson
v. Wood 137 Tex. 201; 152 S. W. 2d 1084 (1941); Von Rosenberg v. Lovett,
-1          508 (Tex. Civ. App. 1915, error ref. ).

   Second: The principle stated in the case of Yoakum County v, Gaines
County, 139 Tex. 442, 163 S. W. 2d 393 (1942):

       “Our courts have repeatedly held that the judgments
       of commissioners’     courts, in all matters over which
       they are given jurisdiction,    are entitled to the same
       consideration   as those of other courts provided for
       by the Constitution; and that such judgments are not
       subject to collateral   attack, and are reviewable
       only upon appeal or in a direct action for that purpose,
       in the absence of a showing of gross abuse or discre-
       tion, or of fraud or collusion or lack of jurisdiction.
       . . ’ (at p. 396) [Emphasis added. ]

In accord, West Production    Co. v. Penn,. 131 S. W. 2d 1.31.(Tex,, Civ. App,.
1939, error ref. ).

     Third: All presumptions  are m favor of the valid:ltv of the acts of come
missioners  courts.   Bexar County v Hatlev, 136 Tex 354, 150 S W. 2d 980
(1941); Anderson v. Parsley, 37 S. W 2d 358 (Tex. CIV App i931, error
ref. I

     Fourth: The necessity for a matter wrr.hm its jur:sdnctron is pecubar,ly
within the discretion of the Commrssioners      Court, and the courts will not
disturb the exercise of that discretion excen! unon a shownr: of a EOSS abuse
of discretion.   Prrtchar~d & Abbott v. McKenna: 162 Tex 61?; 350s W 2d
333, 340 (1961); Danq : v Davidson,     II 33 S W, 2d 195 (Tex C:iv App i944,,
error ref. ); Lasater v~ Lopez, 2mS W 1033. 1047-48 (Tex Ci,v App 1918,
aff. 110 Tex. 179, 217 S. W. 373), W.rlght v Allen, 257 S W 980. 986 (Tex.
Civ. App. 1924, error ref. ); Rodrlguez,v      Vc~a,
                                                 .- 249 S W 2d 669, 692 (Tex.
Civ. App. 1952, no writ).



                                     -3248-
Hon. Jules Damiani,    Jr.,   page 4 (M- 680)


                      ANSWERS TO YOUR OUESTIONS

                                       1.

     The facts presented to us relating to your first question are as follows:
Prior to the travel in question the Commissi,oners    Court of Galveston County
on December 8, 1969 entered in its Minutes its official order authorizing
travel to and return from Washington, D. C. of the County Judge, the Acting
Director of the local health unit, another physician, and Mr. V. J,, Beninati,
Jr. This group went to Washington to appear before an Assistant Secretary
in the U. S. Depart:ment of Health, Education and Welfare in support of the
application of the county for federal funds for its Community Health Clinic
pursuant to a plan which had been approved by the Texas State Department
of Health. Mr. Benmat:i was requested to appear in Washingron as a Board
Member of the Community Action Council, and the Commissioners           Court
authorized hi,s travel and appearance in that capacity as an expert witness.
The fact that he was District Clerk for Galveston County was who%l,y
coincidental.

     Local health districts and health units are authorized under Articles
4436a- 1 and 4447a. The state approved plan implemented by tire county for
which the federal funds were sought was within he  ). scope of these statutes.,
These statutes,   involving the advancement of public welfare and being
regarded as humanitarian     and beneficial, are eo.be given ~a bber.al or.com-
prehensive construction to py~omote the public interest or welfare..      Board
of Ins. Com’rs~ v. Great Southern Life Ins,. Co_, 150 Tex. 258, 239m
m 803, 809 (19Sl). In Monghan v. ,Van Zandt County, 3 Wilson Civil Cases
page 242, Section 198 (Ct. of App. 1886) the court said,
        1,
            1 I Counties are required to provide for the support
        of their paupers.   ‘Support’ as here used means more
        than supply~ing them with .food and clothing and a house
        to stay in I~.means all that is neces.sary to bodily
        health and comf’ort, and especially does it include proper
        care, atremion and treatment: dhn-rmg ei~ckness. Thm.s is
        a supr’eme obligation of humanlu.~, independent. of any
        statutory mandate.        I ” (at p,, 242)

Accord: 82 C J. S 916:: Stat,uees, Sec. 387, not-e 43; 40 C. JoS. 12, Paupers,
Sec. 3 +.
Hon.   Jules Damiani,    Jr.,   page 5 (M- 680)


     The use of these federal funds comports also with the duty imposed
upon Commissioners      Courts by Article 2351, subdivision      11, to “Provide
for the support of paupers.       1’o Purauanr, 1.0 thas statute this offIce has
held that a Commissioners      Court is empowered to enter i.nto contracts with
the United Sraees Government to administer the Concentrated Empl~oymenr
Project under the Manpower Development and Training Act (MDTA) and
the Economic Opportunity Act (EOS). Attorney General’s Opmion. Number
M-605 (1970). Under both that Opinion and the facts presently under con-
sideration the funds available relate to proverty and indigent care under
this Article 2351, subdivision II. We hold that the Commissioners            Court
had jurisdiction  to act in order to receive these funds under the HEW
program for the operation of health chnics for poverty areas,,

    In the case of Pritchard & Abbott v McKenna, 162 Tex, 617, 350 S. W.
2d 333 (1961) the court upheld the authority of the Commrssroners Court
to employ experts to assist it, and said,

        “Admittedly the Commissioners’      Court is not expressly
        clothed wih constitutional  or starutor~y aut~horiry to
        contract for the services detailed in %h.Vsagreement.      but
        we think that she authority 1s i,mpbed from the powers
        that have Seen expressly granted to the duties mposed
        upon~ this hod, by law ” (ar p 334) [E;-r.,pha;.,.s hc_;tied 1

That Cour: had :heretofore   held. ichat tb,e Cdn:-n-ssione? 3 Cou-, +,, c’nde- ce?arn
statutes. had necessarily  impi:ed pcwer 3 Gna!es v Lai:gt’~;;n. 14’::TeF
169, 214 S,, W. 2C 451 (1948) (S~tpra)

                                           2

     Your second question co]... ..,
                             w--n3   exper!;ei oi :he Couiit~; M~tou :.cal Survey
Commit,tee appom:,ed pursuant ‘~0Art I,Cle 6 141 L The st;b~!.Liteready,; a;
follows:

         “Section 1.. The county Qdge may. uur ing he inor’:::!
         of January of odd-numbered ‘years. appo:#nt a Coun ;j
         Hi,st:or ical Survey Comm,m!ee. !!o rcns:;,jt of at
         leas; seveli (‘7) residents of rhe count’:, who have
         exhibj,red interest :,.ntY-e h;.;:~cx~:;nnti t ~‘atf7:ions 0;’me
         State 01 Texas. for a term of Y.WG       (2) yeair:; --  The
Hon. Jules Damiani,    Jr.,   page 6 (M- 680)


        of the county to determine the existence of historical
        buildings, battlefields,    private collections of his-
        torical memorabilia      I or other historical features
        within the county, and shall thereafter continue to
        collect data on the same subject as it may become
        available.    The data collected shall be made avail-
        able to anyone interested therein, and especially to
        the Commissioners       Court and to the Texa,s State
        Historical Survey Committee.         This Committee shall
        make any recommendations          concerning the acquisition
        of property,   real or personal,     which are of historical
        significance,   when requested to do so by the Commis-
        sioners Court. I’ [Emphasis added. ]

     The Chairman of the County Historical Survey Committee attended the
ceremony in Austin, Texas, at which the Governor’s Mansion was designated
a Texas Historical Landmark.    She was invited by the Governor and the Texas
State Historical Survey Committee to be their special honored guest; at the
ceremony she was recognized and honored as the outstanding County Chair-
man of 1968. The trip and payment of these expenses were specifically
authorized by the Commissioners   Court.

    Payment of travel expenses for ,out:of-,county, tra~veJ ,by,,mer@er:s~ ,of, the,,
Historical Survey Committee is authorized where the travel is related to
the statutory purpose of the committee.

     We are unable to say, from the facts submitted us, that the travel and
expense in question could not be found by the Court to be reasonably and nec-
essarily incident to the functioning of the Chairman of the Committee in her
official status.    Fact determinations    such as these must necessar~ily encorn,-
pass a wide range of di.scretion.       We cannot, subst:itute our discretion for
that of the Court.; nor can we hold that the faces show a clear abuse of dis-
cretion by the Court. No question of extra or dual compensation arises,
since it i.s settled that; travel expense does not: constitute salary or compen
sation.   Terrellv,     Ki,ng, 118 Tex.. 237, 241, 14 S. W.. 2d 786, 791 (1929).
Attorney GenePal’s--on           No Cd-527 ( n3(15),

    Our opinion   is, untrl a showing is made of an abuse of discretion or of
fraud or collusion on he part of the Commissioners      Court, that this is a
valid claim.



                                       -3251-
Hon. Jules Damiani,     Jr.,   page 7 (M- 680)


                                         3.

     Your third question concerns the Commissioners Court’s authorizing the
travel expenses of three members of the County Museum Board to attend a.
workshop meeting in Dallas, Texas, dealing with the operation of small
museums.

    Article 6081e clearly authorizes the Commissioners Court to acquire land
and buildings for the purposes of historical museums and provides for their
control and management by the County. Section 3 of this Article reads, in
part, as follows;
        ,, .1 All hisroric or prehistoric   sites, historical
       museums of historically   significant objects acquired
       bv authoritv of this Act shall be under the control
          ,        II



       and management of the city or county acquiring same
       or by the city and the counts jointlv? where they
       have acted j&ntly in acquir;ng same, ” [Emphasis
       added. ]

    In carrying out the specifically granted statutory authority to acquire,
control, and manage a County museum, tlae Commissioners            Court has the
implied power and authority to create a’means of management.of.&e          museum’
by the appointment of a Museum Board or the employment of a curator or
other agents, 30 long as the Court does not relinquish or divest its statutory
duty of control and management.       The law does not require that ebe Com-
missioners     Court? in the exercise of its stattnory power and authority to
manage and operate a museum, must exercfise all aspects of such management
personally.     In HiPI!v. Sterrett, 252 S. W,, 2d 766, (Tex. CLv,.App. 1952,ferror
ref. n. r. e. ), the Court said.

          . I It is further well. settled that the Commissioners’
        Cou%;t may employ persona to assist even an officer
        in the, perfor,mance of statutor;y c!Nles; Terrell v,, Greene,
        88.Tex 539, 31 S. W. 631; or to perform service:3
        which do not invoke the exercise of any governmental
        function; Stringer v Franklin Coumy supra (58 Tex,
        Ck App. 34’4, 123 S W. ll68),,            ” (at p,, ‘770),

    In accord w(th tt:s pr.inciple, see Gano v~ Palo Pinto County? 7 I Tex     99,
8 S. W. 634 (1888), holding it to be the duty of the Comm;.ssionera’ Cmrt


                                       -, 3 2   5 2 ‘-
.




    Hon. Jules Damiani,      Jr.,   page 8 (M- 680)

    (1
      . . . to select   themselves such agents as may be necessary to assist’them
    in the discharge     of their functions. ,, .” See also 47 Tex. Jur. 2d 150,
    Public Officers,     Secti.op 114.

         The specific statutory authority granted to a county by Article 6081e to
    acquire, control., manage, operate and maintain, for the use of the public,
    a county museum, by necessary implication authorizes the Commissioners
    Court to pay the necessary and reasonable expenses incident to those duties,
    When that Court finds that travel expenses of persons entrusted with the man-
    agement and operation of the museum were reasonable and necessarily
    incident to their official duties, then we hold that the Court may JegaLy
    authorize payment of t.hose expenses.    The authorities cited in the preceding
    portion of this opinion support this holding.

                                              4.

         Any prior opinions of this office,        if any, contrary   to our holdings in
    this opinion, are hereby overruled.

                                      SUMMARY

        Under the facts submitted:

              (1) Under Articles 4436a-1 and 4447a and 2351. Sec. 1~1,
                  V. C. S. I the Commissioners   Court had implied
                  autbozity t,o authorize travel expenses of an expert
                  witness TOappear at an HEW Committee hearing in
                  Washingr~on, D. C. to give evidence of the ,need oi
                  federal funds Joncertain povelry areas in the county.

              (2) Under   Arhcle 6145. 1, V C. S     t.he Corrmis~loners
                 Court had Implied author,it:y to authorize     travel
                 ex~penses fo;: t:he Chair man of the Count,y Hisr:or kal
                 Su.rvey Committee necessary      to the performance
                 of ~-IL;duries in that capacity.

              (3) Under ArkYe 6081e, V. C,. S. ,~ the Cornmbsi,oner.s
                  Cour~t Lqadknplied power 1~0create a Museum. Board
                  Taomanage a Count:y M~dsetim and ICIpay tr avcl
                  expenses of the Board Members In carry~ing outs their
                  dutue.; :n tb,o~:e capac::,ti~es.
                                                    ,’9




                                                             eneral   of Texas
                                        -.3253-        u
Hon. Jules Damiani,     Jr.,   page 9 (M- 680)


Prepared    by E. L. Ha.m?tLton
Assistant   Attorney Genera!;

APPROVED:

OPINION COMMITTEE:




Gordon Ca;s
William Crajg
James Qui,ck
R. D. Green

MEADE F. GRIFFIN
Staff Legal A;sixw~r.

NOLA WHITE
First Assfstant
