                               The Attorney General of Texas
                                                      xay 14, 1982
MARK       WHITE
Attorney     General


                               Honorable     James Warren Smith,      Jr.          Opinion    No. MW--46?
Supreme Court Buildin          County    Attorney
P. 0. 80x 12546                                                                             Authority     of   county      to
                               Frio County                                         Re:
Justin. TX. 76711. 2546
5121A752501
                               P. 0. Box V                                         reimburse          county       sheriff
Telex 9101674.1367            .Pearsall,     Texas   78061                         with       public       monies        for
Telecopier 512/475-0266                                                            personal      loans      Incurred       in
                                                                                   conducting        county-wide       drug
                                                                                   investigations
1607 Mm St.. Sui\e1400
Dallar. TX. 75201.4709
2141742-6944                  Dear Mr. Smith:

                                     As we understand             the facts      relating     to your    request   for   an
A624 Alberta Ave.. Suite1M)
                              opinion,      the sheriff         of Frio County,       with the approval       of the Frio
El Paso. TX. 79905.2793
9151533.3464                  County Commissioners            Court,    hired   an undercover       agent to Investigate
                              the traffic        of drugs in the county.           However, the county budget aLthe
                              time     contained       no funds      to finance        the operation     insofar   as the
1220 Dallas Ave.. Suile 202   purchase       of drugs,       and ocher       expenditures,       might be necessary      to
Houston. TX. 77002.6966
                              successfully         complete      the undercover       work.     In order    to allow    the
7131650.0666
                              investigation         to   go forward,       the sheriff      personally   provided   almost
                              $16,000      to finance       It,    $14,000    of which was loaned         to the sheriff
606 Broadway. Suite 312       expressly       for that purpose by a locel            bank.
LvbbOCk. TX. 79401.3479
5061747.5235
                                     The operation   ended successfully    with a number of grand jury
                              indictments.     You ask if the sheriff   may be reimbursed   by the county
 4309 N. Tenth. Suite 8       for the money he personally      expended on the project.   If so, you ask
 Mc~llen. TX. 76501.1665      if the county auditor    may approve payment of the claim notwithstanding
 5121662.4547                 the absence of competitive    bids as required   by article 2368a. V.T.C.S.

 200 Main Plaza. Suile 400           It is the duty of the sheriff          to be a conservator         of the peace In
 San Antonio. TX. 762052797   his county,      and to apprehend     all    offenders.         Penal Code 52.17.       The
 5121225-4191                 deployment     of law enforcement      officers     within      the county    Is a matter
                              left   to his discretion.       Weber v. City of Sache. 591 S.W.2d 559 (Tex.
                              Civ. App. - Dallas       1979. no writ).         Article      3899, V.T.C.S.,     provides
                              that    each    srlaried   sheriff    “shall      be entitled          and permitted      to
                              purchase    or charge to his county all reasonable                 expenses  necessary    in
                              the proper       and legal    conduct    of his      office.”        And article     3912k,
                              V.T.C.S.,    authorizes    the commissioners        court of a county         to “fix    the
                              amount of compensstion,        office   expense,      travel     expense,   and all other
                              allowances”     for the sheriff     . The commissioners           court of the county is
                              therefore     authorieed    to allow     such expenses         If they are reasonably




                                                                 p.   1638
Honorable     James Warren Smith,           Jr.    - Page      2     o&k469




necessary     for   the proper performance                of       the   sheriff’s   duties.       -See
Attorney     General Opinion H-1250 (1978).

        It has been suggested           that the reimbursement             of the sheriff            in
these     circumstances        would    constitute         a violation       of     article      III,
section     52 of the Texas Constitution,               which prohibits         the granting         of
public     money or thing          of value        in aid       of or to any individual.
However,      the reimbursement         of a sheriff          for personal        funds used to
meet reasonable        expenses     necessary      in the proper and legal              conduct      of
his office       has never been considered               Illegal.       See Hardy v. Lubbock
County,      89 S.W.2d 243 (Tex.          Civ.     App. - Austin-35,              no writ).          In
Attorney      General     Opinion     H-210      (1974),      the director         of    the Texas
Department       of Public      Safety    asked about          providing     “flash       rolls”     to
undercover       agents    for     the purchase           of    evidence    against         narcotic
traffickers.        There it was said.          “The money is used to combat crime,                    a
proper public       purpose....       The cost of ‘purchasing’             evidence       under the
circumstances...        is an expense          of the agency and not the individual
expense of the employee acting               for it.       The Department should bear the
financial      burden and risk         -- not the employee.”               See also         Attorney
General Opinion H-1148 (1978)              (county     “flash     money” fund).

        If money was expended by the sheriff          for a proper public       purpose
in the proper       discharge   of his     duty.    the use of public        funds     to
reimburse      him for    the expenditures      is not barred       by article      III.
section    52 of the constitution.       Barrington     v. Cokinos,    338 S.W.2d 133
(Tex.     1960).   Nor is it necessarily          a bar that,       at the time the
sheriff     spent the money, there was no county money budgeted               for such
expenditures.

      The budgetary process     of                Frio   County is           governed   by article
689a-11,  V.T.C.S.  It specifies                   the   time when          then budget   is to be
adopted each year and provides:

               When the budget has been finally                    approved     by the
               Commissioners          Court,...       no    expenditure        of    the
               funds    of      the    county     .shall     thereafter       be made
               except     in strict         compliance       with    the budget       as
               adopted       by    the     Court.       Except      that    emergency
               expenditures,         in case of grave           public     necessity,
               to meet unusual            and unforeseen          conditions      which
               could    not,      by reasonably           diligent       thought     and
               attention,        have been         Included       In the original
               budget,     may from time to time be authorized                   by the
               Court      as     amendments        to    the     original      budget.
               (Emphasis added).

The commissioners       court  can ratify    expenditures    that   it might have
authorized  originally.        State  v. Carnes;     106 S.W.2d 397 (Tex.      Civ.
APP . - San Antonio      1937, no writ).   -See  Gussett  v.   Nueces  County,  235




                                                  P. 1639
Honorable    James Warren       Smith,    Jr.    - Page 3     LMW-469)




S.W. 857 (Tex. Comm. App. 1921).        If the commissioners   c.‘urt concludes
that the sums spent by the sheriff       were emergency expend::ures     made at
a time of grave    public   necessity      to meet unusual   conditions    which
could not have been reasonably      foreseen  in time to include     them in the
original   budget, it   may, on its       own motion,   amend the budget        to
provide  for their payment by the county.

        The budgetary     amendment process           could also be set in motion by
the sheriff       himself   if he requests          a grievance        committee    hearing    to
revise    the budgeted      amount of expenses           or allowances        for his office.
Section     2(d)    of article      3912k,     V.T.C.S.,       allows    any elected      county
officer    who is aggrieved          by the setting            of his     expenses     or other
allowances       by the    coxsaissioners        court     to request        such   a hearing.
Assuming      no deficit       in    county       funds     would     result,     a favorable
committee     determination       could    effect      the necessary       budgetary     change.
Neptune v. Renfro.         586 S.W.Zd 596 (Tex. Civ. App. - Austin                      1979, no
writ) ; see also Jackson v. Leonard,                 578 S.W.Zd 879 (Tex.          Civ. App. -
Houston 114th Dist.]         1979, writ ref’d         n.r.e.).

       Article     2368a.   V.T.C.S,       about which you ask, restricts             the power
of the coaxeissioners          court     to make contracts        creating     or imposing       an
obligation       or liability         of any nature        or character        on the county
without first       submitting     the contract       to competitive       bids.     Id. 52(a).
The reimbursement         of the sheriff         for necessary      expenses     incurred    does
not involve       a contractual       obligation     to the sheriff      on the part of the
county.      It involves      a statutory       duty to which the competitive            bidding
statute     is not applicable.             The fact    that part of the money used by
the sheriff       was obtained       from a personal       bank loan does not alter             the
situation.        The repayment         of the loan to the bank involves                  only    a
personal      obligation     of the sheriff         to the bank, and it is irrelevant
vhether any money reimbursed               to him is (or will be) actually              used for
that purpose by the sheriff.                 Whether he is entitled          to be reimbursed
for the personal          funds he expended           is not dependent          upon where he
obtained      the funds,      or what his personal           obligations       might be.       -See
Attorney     General Opinion V-1149 (1951).

       Neither     were the evidence         “buys”     true contractual        transactions.
They merely exposed         the “flash”      money used by the sheriff            to a risk of
loss -- much as sheriff’s             vehicles     are exposed to possible           damage or
destruction      when used in pursuit           of law violators.          The county never
became      contractually        obligated       for     the    purchase      price     of    the
contraband      evidence,     and was at all times legally             entitled     to recover
any county money paid to the person from whom it was “purchased.”                             See
14 Tex. Jur. III Contracts             9176, at 287; 1 Tex. Jur. III Topic Set-v=
No.     18,     56.     Cf.     V.T.C.S.       art.      4476-15,      §§5.03(b),       5.07(a)
(forfeitures);       Penal Code 99.21(a)            (public    duty justification);         City
of Fort Worth v. Reynolds,              190 S.W. 501 (Tex. Civ. App. - Port Worth
1916. writ ref’d        w.o.m.)    (illegal     contract,     constructive      trust).




                                                p.   1640
Honorable   James Warren    Smith.    Jr.    - Page 4      (flW-469)




                                     SUMMARY

                The     Frio    county      Commissioners     Court     is
            authorized       to   reimburse       the sheriff   for    the
            personal     funds he used to meet reasonable       expenses
            of   a narcotics       investigation.       The competitive
            bidding    statute   is inapplicable.

                                                    Very   truly     yours.




                                                    MARK            WHITE
                                                    Attorney       General of   Texas

JOHN W. FAINTER, JR.
First Assistant Attorney      General

RICHARD E. GRAY III
Executive Assistant     Attorney     General

Prepared    by Bruce Youngblood
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison.     Chairman
Jon Bible
Patricia  Hinojosa
Jim Moellinger
Bruce Youngblood




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