Case Information
*1 The Attorney General of Texas xay 14, 1982
MARK WHITE
Attorney General Opinion No. MW--46?
Supreme Court Buildin County Attorney P. 0. 80x 12546 Frio County Re: Authority to Justin. TX. 76711. 2546 P. 0. Box V sheriff 5121A752501 .Pearsall, Texas 78061 with public monies Telex 9101674.1367 loans Incurred Telecopier 512/475-0266 county-wide conducting drug investigations 1607 Mm St.. Sui\e 1400 Dallar. TX. 75201.4709 Dear Mr. Smith: 2141742-6944
As we understand facts relating to your request for an
A624 Alberta Ave.. Suite 1M) opinion, the sheriff of Frio County, with the approval the Frio El Paso. TX. 79905.2793 County Commissioners Court, hired an undercover agent to Investigate 9151533.3464 the traffic of drugs in the county. However, the county budget aLthe contained no to finance the operation insofar 1220 Dallas Ave.. Suile 202 purchase of drugs, and ocher might be necessary Houston. TX. 77002.6966 successfully complete the undercover work. In order to allow 7131650.0666 investigation to go forward, the sheriff personally provided almost
$16,000 finance It, $14,000 of which was loaned expressly for that purpose by a locel bank. 606 Broadway. Suite 312 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 the money he personally expended on the project. If so, you ask 4309 N. Tenth. Suite 8 if the county auditor may approve payment of the claim notwithstanding Mc~llen. TX. 76501.1665 5121662.4547 the absence of competitive bids as required 2368a. V.T.C.S. is the duty of the sheriff to be a conservator of the peace 200 Main Plaza. Suile 400 his county, and to apprehend all offenders. Penal Code 52.17. San Antonio. TX. 762052797 deployment law enforcement officers within Is a matter 5121225-4191 Weber v. City of Sache. 591 S.W.2d 559 (Tex. left to his discretion. Civ. App. - Dallas 1979. no writ). 3899, V.T.C.S., provides each srlaried “shall be entitled and permitted purchase or charge to his county all reasonable legal conduct office.” And article 3912k, V.T.C.S., authorizes the commissioners court of a county to “fix amount of compensstion, office expense, travel expense, and all other allowances” for the sheriff . The commissioners court of the county such they are reasonably therefore authorieed to allow If *2 o&k469 necessary for the proper performance of the sheriff’s duties. Attorney General Opinion H-1250
It has been suggested that the reimbursement of these circumstances would constitute a violation 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 meet reasonable in the proper and legal conduct of his office has never been considered Illegal. See Hardy v. Lubbock County, 89 S.W.2d 243 - 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” undercover agents 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 the agency and not the individual expense of the employee acting 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 discharge of his duty. the use of public funds him the expenditures is not barred by article III. section 52 of the constitution. Barrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960). Nor it necessarily a bar that, at the spent the money, there was no county money budgeted for such expenditures. process of Frio County is governed
689a-11, V.T.C.S. It specifies time when then budget to be adopted each year and provides:
When the budget has been finally approved by the Court,... no expenditure .shall thereafter be made except in strict compliance with the budget adopted the Court. Except that emergency in case of grave public necessity, to meet unusual and unforeseen
could not, by reasonably diligent thought attention, have been Included the original budget, may from time to time be authorized by the as amendments budget. (Emphasis added).
The commissioners can ratify expenditures it might have 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 *3 - 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
could not have been reasonably foreseen in time to include them in the budget, amend the budget it may, on its own motion, provide for their payment by the county. amendment process could also be set in motion by himself if he requests a grievance committee hearing
revise the budgeted amount of expenses or allowances for his office.
Section 2(d) 3912k, V.T.C.S., allows any elected officer who is aggrieved by the setting expenses or other allowances coxsaissioners court to request such a hearing. Assuming no deficit funds would result, a favorable committee determination could effect the necessary budgetary change. Neptune v. Renfro. 586 S.W.Zd 596 - 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.). 2368a. V.T.C.S, about which you ask, restricts the power
of the coaxeissioners to make contracts creating or imposing an obligation or liability of any nature or character on without first submitting the contract to competitive bids. Id. 52(a). The reimbursement of the sheriff for necessary incurred does not involve a contractual obligation to the sheriff on the part of the county. involves a statutory duty to which the competitive is not applicable. The fact that part of the money used by the sheriff was obtained from a personal bank loan does not alter situation. The repayment loan to the bank involves only a obligation of the sheriff to the bank, and it irrelevant vhether any money reimbursed to him is (or will be) actually used that purpose by the sheriff. Whether he is entitled to be reimbursed the personal funds he expended is not dependent upon where he obtained funds, or what his personal obligations might be. See Attorney General Opinion V-1149
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 law violators. The county never became contractually obligated price contraband evidence, and was at all times legally entitled to recover any county money paid to the person from whom it was “purchased.” 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).
Honorable James Warren Smith. Jr. (flW-469)
SUMMARY Frio funds he used to meet reasonable The competitive of a narcotics investigation. 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