Honorable W. P. Herms,         Jr.       Opinion No. O-6519
County Auditor                           Re: Under the given facts is the Com-
Waller county                                  missioners’   Court of Wailer
Hempstead,   Texas                             County within its authority in
                                               employing an independent auditor
                                               to audit the books of the County
Dear   Sir:                                    Auditor ? And other questions.

                Your request     for an opinion on the above   questions   reads
as follows:

                 “Please find inclosed a copy of the final report
       of tialler County Grand Jury, recently adjourned.

               “Also inclosed,  please find Commissioners’
       Court orders of some 2 months later, dated June 11,
       1945, and June 18. 1945.

                “There is no provision in our Budget for the ex-
       penditure of funds for such audit.  Our Budget has not
       been amended, nor has an emer~gency been declared in
       anticipation of amending same.

                 “I shall greatly appreciate   your kindness   in ren-
       dering   an opinion on the following    questions:

        “1.     Is Commissioners’   Court within its authority in
                employing an independent auditor to audit my
                books ? I am appointed by District   Judge after
                Commissioners’    Court declared an Auditor a
                public necessity, county population 13% million.

        “2.     Am I authorized to approve a warrant for the
                payment of such independent auditor employed
                by the Commissioners’    Court when there is no
                provision in the budget for such expenditure,
                and such budget has not been amended ?

        u3.     Under the circumstances,     would Commissioners’
                Court have authority to amend said budget, this
                not being a matter of inadequate funds for some
                ,item already set up in the budget, but for an en-
                 tirely different and foreign item to anything con-
                tained in the budget?
                     c


Hon. W. P. Herms,   Jr., page 2 (O-6519)




      “4.    The reason given for such audit is based on
             fallacy,  since my records contain, and my
             periodic reports, filed with the County Clerk,
             and handed to the Commissioners’      Court, con-
             tain all the information which could possibly
             be necessary    to levy a proper tax. The Grand
             Jury report bears out this contention.    Under
             these cirucmstances,     what is my recourse ?

      “5.    If you will do so, I shall greatly appreciate any
             general suggestion   on this matter, which, in
             your opinion, I can legally justify.”

              The order of the Commissioners’     Court   of Waller   County,
dated June 11, 1945, is as follows:

      “THE STATE OF TEXAS1
       COUNTY   OF WALLERI

      “IN THE COMMISSIONERS’  COURT OF WALLER               COUNTY,       TEXAS,
                     JUNE TERM, A. D. 1945.

                                “ORDER

              “BE IT KNOWN THAT WHEREAS,          at a regular meet-
     ing of the Commissioners’    Court of Walle,r County, Texas,
     held on the 14th day of May A. D. 1945, all members       of said
     Commissioners’     Court being present and voting a resolution
     was unanimously    passed, dated on said date and recorded in
     Book J. Page 68, of the Minutes of the Commissioners’        Court
     of Waller County, Texas, to employ a disinterested,      compe-
     tent and expert accountant under the provisions    of Article
     1641 of the Revised Civil Statutes of the State of Texas, to
     audit all the books, records and accounts of Wailer County
     and all of the books, records and accounts of the County
     Auditor of Waller County, who shall furnish said Commis-
     sioners’ Court with such information which will enable it to
     determine and fix proper appropriations     and expenditures    of
     public moneys and to ascertain   and fix a just and proper tax
     levy for Waller County, Texas;

               “AND WHEREAS,      the Clerk of the County Court caused
      said resolution  to be published in one (1) issue of ‘The Hemp-
      stead News,’ a newspaper of general circulation      published in
      Waller County, in accordance     with said resolution and the law
      relative to the publication of such notices;

              “AND WHEREAS,     on this the 11th day of June, A. D.
      1945, at a regular meeting of said Commissioners’    Court,
Hon.   W. P. Herms,    Jr., page 3 (g-6519)




       and after publication as aforesaid,      came on to be con-
        sidered in ,open court the appointment of such auditor for
       the purposes set forth in said resolution;        and it appearing
        to the dourt that no objection or opposition to the employ-
        ment of such auditor has been formally filed with the Com-
        missioners’    Court and no objection voiced EXCEPT            a pro-
       test in the form of a letter addressed       to each Commissioner
       of Wailer County, Texas, by W. P. Herms,            Jr., County Au-
        ditor of Waller County, Texas; and it appearing.          after due
        hearing, that no good cause is shown why such audit should
        not be made; and it affirmatively      appearing to the Court
        that the antagonistic   attitude of said county auditor toward
        this court and the lack of confidence of this court in the
        ability of the said W. P. Herms~, County Auditor of Waller
        County, Texas, renders it utterly impossible          for it to prop-
        erly determine and fix appr,opriations       and expenditures      of
        public moneys and to ascertain       and fix a just and proper
        tax levy; and the court further finding that, after such pub-
        lication and notice,, it has not been furnished with complete
        information    such as would enable it to fix proper appropria:
        tions and tax levy; and the court further finding that an im-
        perative public necessity     exists for an independent audit of
        all books, records and accounts of Wailer County and all
        books, records and accounts of the auditor of Wailer County,
        audited in accordance     with the provisions     of Article   1641 of
        the Revised Civil Statutes of the State of Texas, to enable the
        court to determine and fix proper appropriations           and expend-
        itures of public moneys and to ascertain        and fix a proper and
        just tax levy;

                “IT IS, THEREFORE,      ORDERED,    ADJUDGED     AND DE-
       CREED by the Commissioners’        Court of Waller County, Texas,
       in open court, at a regular session held on the 11th day of June,
       A. D. 1945, that a disinterested   auditor be employed to make an
       audit of all books, records and accounts of Wailer County and
       all books, ret-ords and accounts of the county auditor of Wailer
       County, and to provide this c’ourt with complete infor’mation to
       enable it to determine and fix proper appropriations     and expend-
       itures of public moneys and to ascertain    and fix a proper and
       just tax levy.

                ‘“IT IS FURTHER    ORDERED that the contract for such
       audit be let in the manner provided by the statutes applicable
       to the letting of contracts by this court, and the payment there-
       for shall be made out of the public funds of said county, in ac-
       c~ordance with said statutes, currently available for such pur-
       pose.
Hon. W. P. Herms.        Jr., page 4 (O-6519)




                                          “A. B. Anderson.    County Judge,
                                           A. M. Wallingford.   Commissioner,      Pct.1
                                           R. C. Snow. Commissioner     Pet. 2
                                           John H. Schmidt,Commissioner       Pct.3
                                           C. A. Wilpitz, Commissioner      Pet. 4”

               The order     of said Court,     dated June 18, 1945.     is as follows:

      “Order   of June 18. 1945 - Follow up of order           of
                              June 11. 1945.

    “THE STATE OF TEXAS1
     COUNTY  OF WALLER   1                NOTICE

               “NOTICE IS HEREBY GIVEN that, pursuant to an
     order of the Commissioners’       Court of Waller County, Texas,
     mad~e on the 11th day of June, A.D. 1945, after due notice of
     a resolution adopted on the 14th day of May, A.D. 1945, of
     said court’s intention to employ a disinterested,      competent
     and expert accountant under the provisions       of Article  1641
     of the Revised Statutes of the State of Texas to audit all books,
     records and accounts of Waller County and to audit all books,
     records and accounts of the county auditor of Waller County,
     the Commissioners’     Court will receive bids on the 9th day of
     July. A. D. 1945, from any and all duly qualified, disinterested,
     competent and expert accountants wishing to file their bids for
     contract to audit all books, records and accounts of Waller
     County, and all books. records and accounts of the county au-
     ditor of Wailer County and to furnish such Commissioners’
     Court with such information as will enable it to determine         and
     fix proper appropriations    and expenditures    of public moneys
     and to ascertain and fix a proper and just tax levy for Wailer
     County.    The contract will be let on sealed bids.     All bids shall
     be in writing addressed    to the Commissioners*      Court of Waller
     County, Texas, and shall be accompanied        by a statement show-
     ing the qualifications  of the bidder.   The Commissioners’       Court
     of Waller County reserves      the right to reject any and all bids
     if the terms and conditions thereof are not deemed fair and
     satisfactory.    The contract is to be let to the lowest compe-
     tent and responsible   bidder.

                                          “A.    B. Anderson
                                               .   a Anderson, Judge of the
                                              County Court of Walier County,
                                              Texas.*

               Article    1641 of Vernon”s      Annotated   Civil   Statutes,   provides:
Hon. W. P. Herms,    Jr.,‘page   5 (o-6519)




              *Any commissioners’       court, when in its judgment
     an imperative     public necessity   exists therefor,    shall .have
     authority to employ a disinterested,        competent and expert
     public accountant to audit all or any part of the books, rec-
     ords, or accounts of the county; or of any district,         county
     or precinct officers,    agents or employees,       including audi-
     tors of the counties, and all governmental         units of the coun-
     ty, hospitals,   farms, and other institutions      of the county
     kept and maintained at public expense, as well as for all
     matters relating to or affecting the fiscal affairs of the
     county.   The resolution providing for such audit &al,1 re’:,
     cite the reasons and necessity      existing therefor such as
     that in the judgment of said court there exists official mis-
     conduct, willful ommission       or negligence    in records and
     reports,   misapplicaxon,    conversion     or retention of pub,-
     lit funds, failure in keeping accounts,       making reports and
     accounting for public funds by any officer, agent or em-
     ployee of the district,   county or precinct, including deposi;
     tories, hospitals,    and other’ public institutions maintained
     for the public benefit, and at public expense; or that in the
     judgment of the court, it is necessary        that it have the in-
     formation sought to enable it to determine and fix proper
     appropriation     and expenditure of public moneys, and to as-
     certain and fix a just and proper tax levy.         The said reso-
     lution may be presented in writing at any regular or called
     session of the commissioners        court, but shall lie over to
     the next regular term of said c~ourt, and shall be published
     in one issue of a newspaper of general circulation           published
     in the county; provided if there be no such newspaper pub-
     lished in the county, then notice thereof shall be posted, ins
     three public places in said county, one of which shall be at
     the court house door’, for at least ten days prior to its adop-
     tion. At such next regular term said res,olution shall be
     adopted by a majority     vote of the four commissioners         of
     the court and approved by the county judge.           Any contract
     entered into by said commissioners          court for audit provided
     herein shall be made in’accordance         with the statutes appli-
     cable to the letting of contracts by said court, payment for
     which may be made out of the public funds of the county in
     accordance     with said statutes.    The authority conferred ,on
     county auditors contained in this title as we11 as other pro-
     visions of statutes relating to district,      county and precinct
     finances and accounts thereof shall be held subordinate to
     the powers given herein to the commissioners’            court.”

               It is our opinioixthat the above statute authorizes   the Com-
missioners’   Court of Waller    County to employ an independent auditor to
audit your books when, in its judgment, an imperative       public necessity
exists therefor.    The Commissioners’     Court is not given the authority to
                        P




Hon. W. P. Herms.      Jr;. page 6 (O-6519)




determine that an imperative     public necessity   exists for such audit under
any and all circumstances,    as the above statute lays down certain condi-
tions which must of necessity    exist and constitute reasons for the court’s
,determining that such imperative     public necessity   does exist.  However,
it is within the authority of the Commissioners’       Court to determine wheth-
er or not there are sufficient facts to constitute an imperative      public ne-
 cessity for such audit under the requirements      of said statute.

             As to whether you are authorized to            approve a warrant for
the payment of such independent auditor employed             by the Commissioners’
Court when there is no provision in the budget for           such expenditure and
such budget has not been amended, we here quote             and adopt the following
from our Opinion No. o-5184:

              “Article 689a-9, Vernon’s        Annotated Civil Stat-
      utes provides for the preparation        of the county budget.

              “Article 689a-10.  Vernon’s Annotated Civil Stat-
      utes provides that when the budget for the county has been
      prepared and completed a copy of the same shall be filed
      with the clerk of the county court, available for the in-
      spection of any taxpayer.

                “Article 689a-11,   Vernon’s    Annotated     Civil   Stat-
      utes,   reads in part as follows:

               “‘The commissioners*     court in each county shall
               each year provide for a public hearing on the coun-
               ty budget . . . which hearing shall take place on
               some date to be named by the commissioners’court
               subsequent to August 13 and prior to the levy of tax-
               es by said commissioners’      court.    Public notice
               shall be given that on said date of hearing the bud-
               get as prepared by the county judge will be consid-
               ered by the commissioners’      court.    Said notice shall
               name the hour, the date and the place where the hear-
               ing shall be conducted, any taxpayer of such county
               shall have the right to be present and participate       in
               said hearing.   At the conclusion    of the hearing,
               the budget as prepared by the county judge shall be
               acted upon by the commissioners’        court.  The court
               shall have authority to make such changes in the
               budget as in their judgment the law warrants and
               the interest of the taxpayers demand.        When the bud-
               get has been finally approved by the commissioners’
               court the budget as approved by the court shall be
               filed with the clerk of the county court, and taxes
               levied only in accordance    therewith. and no expend-
               iture of the funds of the county shall thereafter      be
               made except in strict compliance       with the budget
Hon. W. P. Herms,     Jr., page 7 (O-6519)



             as adopted by the court. ,Ex,cept that ,emer-
             genc.y expenditures,   and cases    of grave ,pub-
             lit necessity, .to .meet unusual and unforeseen
             conditions which could not, by reasonab,le dil-
             igent thought and attention have been included
             in the original budget, may from time to time
             be authorized by the court as amendment to
             the original budget.    In all cases where, such,~
             amendment to the original budget is made,,a~
             copy of the order. of the court amending the
             budget shall be filed with the clerk of the cotin-
             ty court, and attached to the budget originally              ,~
             adopted.’

              “Article   689a-20,   Vernon*s   Annotated   Civil   Statutes.
     provides,as    follows:
                                             .,
             “‘Nothing contained in this Act shall be ‘construed
             as precluding the Legislature      from making c,hang:
             es in the budget for State purposes or prevent the
             County Commissioners’      Court from making chang-
             es in the budget for county purposes or prevent
             the governing body from making changes in the
             budget for school purposes;   and the duties re-
             quired by virtue of this Act of State, County. City
             and School Officers   or Representatives     shall be
             performed   for the c~ompensation now provided by
             law to be paid said officers,  respectively.’

              “‘In construing the foregoing provision (Article      689a-20)
     this department has repeatedly held “we are, of the opinion,
     upon considering     the act as a whole. that Section 20, quoted
     above, does not authorize the commissioners’          court to make
     changes so as to increase the amount of the budget after its
     final adoption except in cases of emergency        o o 0 We do not
     think it authorizes    the commissioners’   court to increase     the
     budget after its adoption.     To so hold, would ~destroy the very
     purpose of the Act.’ (See our opinion No. O-1053 and an opin-
     ion written by Honorable      Joe J. Alsup, Assistant    Attorney
     General dated October 3, 1935.)

              “It is stated in our Opinion No. O-3146:

              ‘““The only way the county budget may’be amended
              after its adoption is in strict compliance   with the
              above statutory provision,     This department has
              consistently  ruled that whether a situation is one
              which can be classified   as an emergency    under the
              budget law so as to permit the commissionersP
              court to amend the budget, is a question of fact
Hon. W. P. Herms,             Jr., page 8 (O-6519)




                 primarily    to be passed upon by the commis-
                 sioners’ court.    See Opinion O-07, O-1022 and
                 O-1728. Annual Opinion Reports of the Attor-
                 ney General for 1939. pages 2, 274, and 455,
                 respectively.

                  “The quoted statutory provision provides that no ex-
         penditure of the funds of the county shall be made after the
         budget is finally approved and filed with the clerk except in
         strict compliance  with the adopted budget.  An exception to
         the foregoing is made, however, as to ‘emergency    expendi-
         tures.’

                 .I
                      . . .

                  “Under the facts stated and in view of the foregoing
         authorities,  you are advised that it is the opinion of this de-
         partment that the commissioners’        court of the c~ounty is un-
         author~ized to make any expenditures       of the funds of the coun-
         ty, except in strict compliance     with the budget, except emer-
         gency expenditures     in case of grave public necessity,     to meet
         unusual and unforeseen      conditions which could not, by reason-
         able diligent thought and attention, have been included in the
         original budget.    Such emergency     expenditures   must be made
         in compliance    with the proper amendment to the budget by
         the commissioners’      court.  Whether or not the situations pre-
         sented in your inquiry are such as can be classified        as a grave
         public necessity    requiring emer’gency expenditures      under the
         budget law so as to permit the commissioners’          court to amend
         the budget, is a question of fact primarily      to be passed upon by
         the commissioners’      court.”

                 Following the rules of law laid down in said opinion,       your
second    question is answered in the negative.

                 As to whether the Commissione’rs’        Court would have author-
ity to amend such county budget, we have held in several             opinions that,
 ordinarily,   that is a question of fact primarily     to be passed upon by the
Commissioners’        Court. as set forth in the above quotation from our Opin-
ion No.O-5184,aswellas        inour OpinionNo.O-5053-A,fromwhichwe            quote as
follows:
                  “As we understand your request. the commissioners’
        court of Johnson County has amended the budget of said coun-
        ty to take care of certain increases      of salary for certain coun-
        ty officials.   It is our further understanding     that it is your con-
        tention that as there wer.e no provisions      contained in the orig-
        inal county budget when it was prepared to take care of any in-
        crease in salaries     to county officials that the same cannot now
        be amended.
Hon. W. P. Herms,      Jr., page 9 (0~6519)          ,,,




               “This department    has, repeatedly he.ld that the ques-
      tions ‘of ‘grave public necessity’ is a, fact question, to .be de-
      termined primarily     by~the commiss:ioners’      court.    It is a&
      parent from your .letter:.that,your ,positiqn iEsthat no ‘grave’
      public: necessity’ existed :at the; time the,county~ budget was
      amended to take care of increase       in salarie,s for certain,
      county officials and therefore the commissioners’           court
      was unauthorized. to make such amendment.            However, on
      the othe,r hand it is apparent that the commissioners’           court
      did decide that they were, legally auth,orized to    ,,, amend   the;
      county budget and in fact did amend said .budget.                   _I ,,

               ‘+This department has held (bpin&        No. b-2315) that
      the discretion    of the commissioners*    court is not absolute
      authority to expend county funds ,in the case of an e,mergen-.,.
      cy, and is, final. only where the ques,tion is ,debatable OCR    where
      the existence    of an emergency    is unquestionable.   However,
      said court has no authority to determine and declare that an
      emergency     exists, and expend county funds .therefor, where
      the facts clearly    show the contrary.    Such court% has no legal
      authority to declare an emerge.ncy and evade the .law, where
      in fact, no emergency      exists..   ,                             ,~

               “Our opinion No. O-1053 defines the m,rm,s ‘grave’,;
      and ‘public necessity’.     We enclose a copy of this opimon
      for ,your convenience.     Where: the existence of grave pub-
      lic necessity   is debatable, the acts of the commissioners
      court are contr~olling.    Therefore,  as above stated, it is
      our opinion that whether or not the commissioners’       court ,.
      of Johnson County has the authority to amend the county
      budget under the facts submitted is a fact question to be ,’
      determined    primarily   by the commissioners’   courLm

              It is our opinion therefore,, that the Commis~sione>rs’ Court
has authority to amend the county budget if the provisions   of the budget
law are complied with, as above set forth.

              We do not express any opinion as to the matters contained
in the copy of the report of the grand jury submitted with your request,
or as to the matters contained in the orders of the Commissioners’       Court
hereinabove  set out. As to your recourse,   we direct, your attention to the
following part of our Opinion No. o-6220,  addressed   to youunder    data of
October 9, 1944:

                *Answering  your third question, we advise that if
      the Co.mmiesioners9    Court has acted fraudulently      or has
      arb,itrarily declared the existence    of an emergency     when
      none in.kmt exists.   and such actionnn     then part of the court
      was taken for.the sole’purpose,of     evading and circumventing
      the law ,regulating budgets amendments.      then you would be re-
      amiss, in your duties as arrofficer  if you did not take appro-
      priate action to protect the county funds.
Hon. W. P. Herms.    Jr.,    page 10 (O-6519)




               “Your second and fourth questions relate to your
      powers and duties under such circumstances         in controlling
      the fiscal affairs of the county.  Article    1651 makes it your
      duty to ‘see to the strict enforcement     of the law governing
      county finances.’   This would certainly include the duty of
      enforcing the terms and provisions     of the c,ounty budget.

               “Article  1660 provides that no claim. bill or ac-
      count against the county shall be allowed or paid until it
      has been examined and approved by the Auditor.        He is pro-
      hibited by Article   1661 from auditing or approving any such
      claim for the purchase of supplies or materials     for the use
      of the county or any of its officers unless all requirements
      of law are complied with. And finally, Article     1661 provides
      that all warrants on the county treasurer,    except warrants
      for jury service,   must be c.ountersigned by the county au-
      ditor.

              “Your remedy under the law. where the Commis-
      sioners’ Court should act illegally   in amending the budget,
      would br to refuse to audit or approve claims filed under
      the attempted amendment and to refuse to countersign     war-
     ‘rants on the county treasurer   against funds unlawfully set
      aside for the purpose.

               “We wish it distinctly understood that we are not ex-
      pressing any opinion on whether your hypothetical     statement
      of facts, absent your own conclus~ions. would amount to an il-
      legal abuse of discretion   on the part of a Commissioners’
      Court.    Each case arising must be judged by its own particu-
      lar facts.”

              The rules of law above referred to are applicable to the situ-
ation you present and contain the only suggestions  on the matters submitted
in your request that we are able to make, so it will be up to you to decide
what should be done under the circumstances.

             .We trust      that this satisfactorily     answers    your inquiry.

                                           Yours      very truly,

                                           ATTORNEY         GENERAL        OF TEXAS

                                           By   /s/     Jas. W. Bassett
                                                        Jas. W. Bassett
                                                               Assistant

JWB:LJ/cm                                                  APPROVED
                                                           OPINION COMMITTEE
                                                           BY /s/  BWB
                                                               Charman
