Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Homerable R. A. MeXlteth County Auditor Cooke County Gainesville, Texas Dear Sir!
Opinion No. 0-4006 Re: Authority of county to participate in the United States Government food stamp plan, and other questions stated herein.
Your letter of September 17, 1941, requesting an opinion of this department on the questions stated therein reads in part as follows:
"The Commissioners' Court of Cooks County in special session September 15th 1941 passed an order by unenlames vote that County Judge be authorized to enter into a contract with the Federal Government to establish food stamp program in Cooks County and to provide necessary funds for setting up said program from COURTY FUNDS provided city of Gainesville agrees to pay half of said expenses incurred.
"The above quoted order appears in volume 4, page 392, Commissioners' Court Deaket of Cooks County and has intended as preliminary to entering into a contract with the Surplus Marketing Administration of the Federal Government for the distribution of foods to relief clients in Cooks County under the proposed stamp plan in lieu of the present system of distributing commodity foods through a commodity room.
"1. The setting up of a revolving fund of from 10000.00 out of PUBLIC FUNDS, said funds to be used for the purchase of stamps
*2 Honcrable R. A. McIlrath - Page 2 to be sold relief olionts and used by these rolief olients for the purehase of foods, the money reoolved from tho sale of atemps to be placed back into the fund for the purehase of more atemps, and 80 on. "2. An agreement to meet all the oxpenses of operating the offige for the sale of atemps, inoluding the salary of oashier and assistant, oost of offige equipment, utilitios, rentals and other expenses, which oxpenses were eatimatod at from to per month. "In the event the Oity of Oainesville agrees to pay one-half of all oxpenses inourred, inoluding the aotting up of the revolving fund, your opinion is desired as to whether, under the above mentioned eireumatanees, there is any authority for aotting up out of the general fund of the ountry, the oounty's part of this aocalled 'revolving fund' and for meeting the oountg's part of the additional oxpenses of operating the offige for the sale of atamps, also out of the general fund in the face of the fact that the condition of the general fund is such that it will show an overdraft of approximetely at the ond of the present year, December 31st, 1941, without taking into consideration the aotting up of the revolving fund or the additional expense of operating the atamp aale offiee, and in view of the faet that neither of these items were provided for in the budget. "If your answer to the above is that the items mentioned are a proper charge against the general fund of the oounty, your opimon is desired as to whether the oash for aotting up the revolving fund and for meeting the additional oxpenses of operating the atamp sale offige may be provided by the is guanee and sale of warrents, or in any other manner, and if warrents should be issued, how a sinking fund may be set up for retiring such warrants.
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Nonorable R. A. Meirath, Page 3
"For the last three years Cooke County has sponsored what is termed a 'health unit", said unit being operated jointly by the United States Public Health Service, State Department of Health, and Cooke County. The last budget set up was for a total of distri buted as follows: "State 443125 Local (Cooke Co. &; City of Gainesville) U. S. P. H. S. (title 6) U. S. P. H. S. (V. D.)
Other Agencies 100000 "The division of the local part of the budget between the city of Gainesville and Cooke County was as follows: "City of Gainesville Cooke County 263125 "The expenditures by the County each month are as follows: "Salary of Health Nurse Salary of Sanitarian 5000 Salary of Clerk 2500 "In addition to the above expenditures, there is an item in the county's part of the budget which is called a 'contingent fund', the amount of which is . The director of the local health unit claims the right to make purchases, and does make purchases each month, out of this contingent fund, without any further order from the Commissioners' Court or the County Auditor, claiming that the order of the Commis sioners' Court setting up the fund is authority for him to make such purchases as he chooses and send bills to the Comissioners' Court for payment, and that the Auditor must approve such bills and the Comissioners' Court must pass them for payment. "Your opinion is desired as to whether there is any authority for meeting the expenses of the county's part of operating the health
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Honorable R. A. Meirath - Page 4
unit as deasribed above with appropriations from the general fund of the ounty, and whether there is any authority for providing a contingent fund such as has been set up and for the disburcing of said contingent fund in themenuer in which it is being done. "Your further opinion is desired as to whether there is any authority for the payment of salaries of the following olase of workers, and for rentals on the following deasribed buildings, out of the general fund of the ounty: "Stenographers or clerks for old age asslatanee office. "Stenographers or clerks for local Texas State Employment offiee. "Stenographers or clerks under the Publi0 Welfare Aet of 1941. "Rental on building used as a W.P.A. Sewing room. "Rental on building used as a commodity Room. "Rental on hall used as meeting place for the local Home Defense Guard. "Rental on building used as A.A.A. office." Artele 2351-17, Vernon's Annotated Civil Statutes, (House Bill No. 201, Aets of the 47 th Legislature, 1941, Regular Session) empowers the commissioners' court of each ounty of this State to ereate a revolving fund or funde and to make appropriations thereto out of the geneml revenue of said ounty to be used by said ounty in cooperation with the United States Department of Agriculture to aid and assist in earrying out the purposes and provisions of an Aot of Congress of the United States pertaining to the distribution of commodities of persons in need of assistance, under the direction of the United States Department of Agriculture. When any ounty exercises the powers granted by the above mentioned statute, an issuing offieer shall be appointed to earry out the provisions of the Aet and to administer the funde appropriated for such purposes. The statute
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Honorable R. A. Meirath, Page 5
sete forth the qualifications of the issuing effleer and provides that his salary shall not exceed per month and that eashiers and other assistants as may be authorized by the court may be employed. This statute also authorizes the eomissioners' court of any county to cooperate with any ineorporated city or town in such ountry on such conditions and requirements as may be promulgated by such comnissioners' court.
You are advised that the county may legal ly participate in the United States Government Food Stamp Plan under the provisions of the above mentioned statute. The only fund out of which "stamps", as above mentioned, may be purchased, or a revolving fund set up, is the general fund of the ountry. Soetion 7, Artisle XI of the State Constitution, Inhibits the ereation of any kind of a "debt," as that word is defined in the case of MoNeal v. City of Neao, 33 S. W. 322, by the Supreme Court of Texas, "unlese provision is made at the time of ereating the same for levying and collecting a suffieient tax to pay the interest theraon and provide at least two per cent as a sinking fund." (See. 7, Art. 11, State Constitution). The word "debt" is defined in the MoNeal case, supra, as follows: "We conclude that the word 'debt' as used in the constitutional provisions above quot ed, means any pecuniary obligation imposed by son. treet, except such as were, at the date of the contract, within the lawful and reasonable contemplation of the parties, to be satisfied out of the ourrent revenues for the year, or out of some fund then within the immediate control of the sorporation."
This department has consistently held that a ountry eannot contract such a "debt" and issue either bonds or time warrants to pay the same out of the general fund of the ountry. This department has also consistently held that a ounty has no authority to borrow money from its depository or any other bank or person to meet casual deflaienelea in its general fund although there will be sufflolent money in said fund when ourrent taxes are collected.
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Honorable R. A. McKirath - Page 6
Although you state "the condition of the general fund is such that it will show an overkraft of approximately at the end of the present year, December 31, 1941, without taking into consideration the setting up of the revolving fund or the additional expense of operating the stamp sale office . . ." it is not shown that by setting up the revolving fund and providing for the necessary operating expenses of said plan that the amounts so required would exceed the amount of current revenues reasonably contempleted by the county. If the funds are available, the revolving fund and the necessary operating expenses can be set up out of the general fund, or if no funds are available and the amount required does not exceed the amount of current revenues reasonably expected or contemplated by the county, ordinary warrants may be issued for the same.
We are enclosing a copy of our Opinion No. 0-3440 which holds that the commissioners' court may pay the bond premium of the issuing officer under Article 2351-15, supra.
With reference to your question relative to the county "health unit" we are enclosing a copy of our Opinion No. 0-2281 for your information. Article 4418-f, Vernon's Annotated Civil Statutes, provides in part, "the commissioners' court of any county shall have the authority to appropriate and expand money from the general revenues of its county for and in behalf of public health and sanitation within its county."
Article 1659, Vernon's Annotated Civil Statutes, among other things, provides: "Supplies of every kind, road and bridge material, or any other material, for the use of said county, or any of its officers, departments, or institutions must be purchased on competitive bids, the contract to be awarded to the party who, in the judgment of the commissioners court, has submitted the lowest and best bid. . . In cases of emergency, purchases not in excess of one hundred and fifty dollars may be made upon requisition to be approved by the commissioners court, without advertising. for competitive bids."
Article 1660, Vernon's Annotated Civil Statutes, among other things, provides that "no claims shall be allowed
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Honorable R. A. Meirath - Page 7
or paid until it has been examined and approved by the ounty auditor."
The duties of the ounty auditor are further prescribed by Artiole 1661, Vernon's Annotated Civil Statutes, which read as follows: "He shall not audit or approve any a uoh olain unjess it has been contracted as provided by law, nor any asoount for the purchase of supplies or materials for the use of said ounty or any of its offleors, unjese, in addition to other requirements of law, there is attached thereto a requiatition signed by the offieor orderimg same and approved by the ounty judge. Said requiattion must be made out and signed and approved in triplieate by the said offleors, the triplieate to remain with the offieor desiring the purchase, the duplieate to be filled with the ounty auditor, and the original to be delivered to the party from whom said purchase is to be made before any purchase shall be made. All warrants on the ounty treasurer, oxeopt warrants for jury service, must be countersigned by the ounty auditor."
Seotion 10, Artiole 2351, Vernon's Annotated Civil Statutes, provides each commissioners' court shall "audit and settle all ascounts against the ounty and direct their payment."
We find no authority, either expressed or implied, authorizing the somissioners' court to set up a "contingent fund," as above mentioned, and in the absence of such authority, the commissioners' court cannot legal ly set up such fund. However, said court may appropriate and oxpend money from the general revenues of the ounty for and in behalf of publie hoalth and sanitation within the ounty as authorized by Artiole 441E-f, supra. Such expenditures to te made in complianee with the above mentioned statutes, and to be allowed and approved by the commissioners' court and the ounty auditor, and in the event the ounty does not have a county auditor, the same to be passed upon, allowed, and approved by the comsissioners' court.
We now consider your third question relative to the authority of the commissioners' court regarding the payments
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Hemorable R. A. MeHrath - Page 8
of salaries of the olase of workers named therein and for rentals on the buildings deseribed, out of the general fund of the county. The eomissioners' sourt is not authorized to pay rental on a building used as an office for the A.A.A. This question was decided in our Opinion No. 0-3876, a copy of which is enelosed. The eomissioners' court is authorized to pay the rental on a building used as a meeting place for the leeal Home Defense Guard as provided by Article 589la, Vernon's Annotated Civil Statutes. The eomissioners' court is leagally authorized to pay the rental on a building used as a W.P.A. Sewing Room and on a building used as a Commodity Room. See our Conference Opinion No. 3099, a copy of which is enolosed herewith. The question, whether the eomissioners' court has authority to appropriate and expand county funis for the purpose of paying the salariss of stenographers or clerks for a "loca1 Texas State Employment Office," "stenographers or clerks under the Public WelfareAet of 1941" and "stenographers or clerks for Old Age Assistance Office" is now before this department, which is presented in another opinion request and when answered we will be glad to send you a copy of the same if you atill desire an answer to your questions regarding the same.
Prusting the foregoing answers your inquiry, we are Yours very truly ATTORNEY GENERAL OF TEXAS
APPROYED OCT 18, 1941 Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL By Ardell Williams Assistont
AW:IM ENCLOSEURIS