Untitled Texas Attorney General Opinion ( 1987 )

Honorable Gary A. Goff Opinion No. JM-784
Hockley County Attorney
Courthouse Re: Re-allocation of road and
Levelland, Texas 79336 bridge funds by a commissioners
court, and related questions
Dear Mr. Goff:
Article 6702-1,l V.T.C.S., the County Road and Bridge Law
[hereinafter the act I, details the authority and responsibilities of
commissioners courts regarding construction and maintenance of a
county’s roads’and bridges. You ask three questions about the proper
construction of the act, specifically about the commissioners court’s
authority to re-allocate from one precinct to another money from the
county road and bridge fund appropriated for county road and bridge
purposes, but unexpended. You do not ask whether the money from the
fund may be expended for purposes other than for roads and bridges;
you ask only whether the expenditure of the money may be directed to
one precinct rather than another. First, we conclude that a
commissioners court does have authority in the situation that you
describe to re-allocate, among the various precincts, soma or all of
the unencumbered money from the road and bridge fund previously
appropriated to a specific precinct and unexpended at the end of the
fiscal year. Second, we conclude that section 3.101(c) of the act is
not applicable to a commissioners court that does not employ road
commissioners pursuant to subchapter B of chapter 3 of the act; the
commissioners court is under no general obligation to expend money in
the road and bridge fund in proportion to the amount of the money
collected In each precinct. And third, we conclude that, in the
situation that you describe. a commissioners court organized as road
supervisors pursuant to chapter 2 of the act has discretion to
allocate money in its road and bridge fund in a manner that takes into
.consideration the amount of funds previously appropriated to any one
precinct, but unexpended.
1. Sections 2.041 and 2.043 of the act have been repealed,
effective September 1. 1987. Acts 1987. 70th Leg., ch. 149, 549(l).
at 1397. 2547.
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Honorable Gary A. Goff - Page 2 (JM-784)
Before we address your first question, a general discussion of
the act might prove helpful. The act sets forth provisions applicable
to all counties, detailing the authority and responsibilities of
commissioners courts regarding construction and maintenance of the
county's roads and bridges. Chapter 2 of the act sets forth the
powers of the commissioners court. Subchapters A through E specify
the authority and responsibility of commissioners courts regarding the
creation or discontinuance of roads, drainage on public roads,
bridges, traffic regulations, and road regulations in subdivisions,
respectively. In each instance, authority is conferred on the
cmissioners court sitting as a legislative and administrative body,
not on individual commissioners.
The act also sets forth three optional methods of organizing the
conuaisslonerscourt for road and bridge construction and maintenance.
If none of the optional methods is implemented, the court is governed
in its methods of operation by section 2.009 of the act, which
provides that county commissioners are supervisors of public roads,
except when road commissioners are employed. Section 2.009 of the act
sets forth the following:
Sec. 2.009. (a) Except when road commis-
sioners are employed, the county commissioners
shall be supervisors of public roads in their
respective counties, and each colmnissionershall
supervise the public roads within his commis-
sioner's precinct once each month. He shall also
make a sworn report to each regular term of the
commissioners court held In his county during the
year, showing:
(1) then condition of all roads and parts of
roads in his precinct;
(2) the condition of all culverts and bridges;
(3) the amount of money remaining in the hands
of overseers subject to be expended on the roads
within his precinct:
(4) the number of mileposts and fingerboards
defaced or torn down;
(5) what, if any, new roads of any kind should
be opened in his precinct and what, if any,
bridges, culverts. or other improvements are
necessary to place the roads in his precinct in
good condition and the probable cost of the
improvements; and
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Honorable Gary A. Goff - Page 3 UM-784)
(6) the name of every overseer who has failed
to work on the roads or who in any way neglected
to perform his duty.
(b) The report shall be spread on the minutes
of the court to be considered in improving public
roads and determining the amount of taxes levied
for public roads.
(c) The supervisor's report shall be sub-
mitted, together with all contracts made by the
court since its last report for any work on any
road, to the grand jury at the first term of the
district court occurring after the report is made
to the commissioners court.
The act also provides in chapter 3 optional methods of organizing
the cowissioners court for its road construction and maintenance
responsibilities. Under subchapter A, the members of the commis-
sioners court are ex officio road commissioners of their respective
precincts
and under the direction of the commissioners court
have charge of the teams, tools, and machinery
belonging to the county and placed in their hands
by the court. They shall superintend the laying
out of new roads, the making or changing of roads,
and the building of bridges underrules adopted by
the court.
V.T.C.S. art. 6702-l. 93.001(a). Section 3.002(a) further specifies
the powers of the commissioners court:
The commissioners court shall adopt a system for
working. laying out, draining, and repairing the
public roads as it considers best, and from time
to time the court may change its plan or system of
working.
Subchapter B provides for a commissioners court/road commissioner
or road supervisor system. The subchapter authorizes a commissioners
court to hire not more than four road commissioners or, in the
alternative, a road superintendent, and sets forth their powers and
duties. In the event that the court hires one or several road
commissioners, subsection (c) of section 3.101 of the act requires
that, as nearly as possible, money in the fund should be expended in
each precinct in proportion to the amount of taxes collected in that
precinct.
p. 3699
Honorable Gary A. Goff - Page 4 (JM-784)
Subchapter C permits the qualified voters of a county, by
petition and election, to create a county-wide road department with
the commissioners court serving as the policy-determining body and an
appointed county road engineer serving as chief executive officer.
Section 3.208 sets forth the county road engineer's duties. Section
3.210 provides:
All expenditures for the construction and main-
tenance of the county roads and the operation of
the county road department shall be paid out of
the road and bridge fund strictly in accordance
with annual budgeted appropriations. However, on
application of the county road engineer, the
commissioners court may transfer any part of any
unencumbered appropriation balance for some item
within the road and bridge fund budget to some
other item.
You inform us that the commissioners court of Hockley County over
twenty years ago ordered that each of the four precincts be
appropriated twenty-five percent of the total county road and bridge
fund, even though one precinct contained over fifty-five percent of
the county's population. At the end of 1985, one precinct had an
unexpended balance in its road and bridge fund of almost $600.000, ?
while two of the other precincts had a surplus of over $100,000. One
precinct's fund surplus was only $45,000. You inform us that none of
the optional methods of governance and organization set forth in
subchapter C have been implemented. The commissioners court then is
governed by section 2.009 of the act. We now turn to your first
question.
You first ask:
Does a commissioners court have the authority
to re-allocate among the various precincts for
road and bridge purposes some, or all, of road and
bridge funds previously allocated to particular
precincts and unexpended at the end of the year?
We answer your first question "yes." We note at the outset that
the funds about which you inquire are dedicated by the Texas
Constitution and may be expended only for county road and bridge
purposes. Tex. Const. art. VIII, §l-a; V.T.C.S. art. 6702-l.
54.003(b). We do not understand you to ask whether such unexpended
money may be diverted for other purposes. Instead we understand you
to ask whether such unexpended money may be expended for road and
bridge purposes but upon projects In a precinct other than the one to
which the money was inj~tiallyappropriated. We also note that Hockley
County has a population of less than 25,000 inhabitants according to
?
p. 3700
Honorable Gary A. Goff - Page 5 (JM-784)
the 1980 federal census. Therefore, article 1666a,2 V.T.C.S., which
applies to counties whose population is in excess of 225,000 inhabi-
tants and specifically permits the transfer of an existing budget
surplus from one budget item to another "of like kind and fund," is
inapplicable. The County Road and Bridge Act neither expressly
authorizes nor prevents such a re-allocation; the Uniform Budget Law
of 1931, however, does authorize a budget re-allocation or amendment.
Article 689a-9,3 V.T.C.S., part of the Uniform Budget Law of
1931, provides that county budgets shall be prepared "to cover all
proposed expenditures of the county government for the succeeding
year." Article 689a-11, V.T.C.S., provides:
The Commissioners' Court in each county shall
each year provide for a public hearing on the
county budget -- which hearing shall take place on
some date to be named by the Commissioners' Court
subsequent to August 15th and prior to the levy of
taxes by said Commissioners' Court. Public notice
shall be given that on said date of hearing the
budget as prepared by the County Judge will be
considered by the Commissioners' Court. Said
notice shall name the hour, the date and the place
where the hearing 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 budget 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
expenditure of the funds of the county shall
thereafter be made except in strict complfance
2. Article 1666a. V.T.C.S., has been repealed, effective
September 1, 1987. Acts 1987. 70th Leg., ch. 149, 549(l), at 2545.
3. Articles 689a-9 to 689a-16, V.T.C.S., have been repealed,
effective September 1. 1987. Acts 1987. 70th Leg., ch. 149, 549(l),
at 2543. Article 689a-20, V.T.C.S., has been amended. Acts 1987.
70th Leg.. ch. 149. 12. at 2475.
p. 3701
Eonorable Gary A. Goff - Page 6 (JM-784)
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. In all cases where such
amendments 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 County Court,
and attached to the budget originally adopted.
(Emphasis added.)
Article 689a-20, V.T.C.S., provides the following:
Nothing contained in this Act shall be
construed as precluding the Legislature from
making changes in the budget for State purposes or
prevent the County Commissioners' Court from
making changes in the budget for county purposes
or prevent the governing body of any incorporated
city or town from making changes in the budget for
city purposes, or prevent the trustees or other
school governing body from making changes in the
budget for school purposes; and the duties
required by virtue of this Act of State, County,
City and School Officers or Representatives shall
be performed for the compensation now provided by
law to be paid said officers respectively.
It is clear from a reading of articles 689a-9. 689a-11, and
689a-20. V.T.C.S., that a commissioners court may amend its budget; it
is less clear under what circumstances such an amendment may be
effected. Two different constructions have been adopted by this
office. One construction reads article 689a-20. V.T.C.S., as confer-
ring broad authority on the commissioners court to make "budget
changes" in its budget, such changes not constituting "budget
amendments" for purposes of article 689a-11, V.T.C.S. ljnder this
construction, there need not be an emergency justifying a "budget
change"; however, there must be an "emergency" justifying a "budget
amendment" under article 689a-11, V.T.C.S. A "budget amendment" was
thought to be necessary when an item was added to the budget that had
not been included in the budget as originally adopted. An increase
(or decrease) in the expenditure of money for any item included in the
budget was thought to need only a "budget change," not a "budget
amendment." See Attorney General Opinions MW-169 (1980); C-499
(1965); o-24277940).
p. 3702
Honorable Gary A. Goff - Page 7 (JM-784)
P
The distinction between a “change” and an "amendment" was
explicitly set forth in Attorney General Opinion C-499 (1965). In
that opinion, this office was asked about the proper procedure that a
county must follow to amend its budget in an instance in which all of
the appropriated money for a particular item or object had been
expended but there was a surplus in the account of another item in the
budget. The commissioners court wanted to transfer money from one
budget item to another. We here set forth in extenso the opinion's
discussion of the distinction between a "budget change" and a "budget
amendment":
Section 11 of Article 689a requires that no
funds of the county shall be expended except in
strict compliance with the budget as adopted by
the Court. This section, however, does authorize
amendments to the budget for emergency
expenditures in cases 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.
Section 20 of Article 689a expressly authorizes
the Commissioners to make changes in the county
budget for county purposes. However, these
changes are limited to changes within the objects
covered by the budget. -Rains v. Hercaitile
National Bank of Dallas, 188 S.W.2d 798 (Tex. Civ.
App. 1945). affirmed 144 Tex. 490, 191 S.W.2d 850
(1946); Southland Ice Co. v. City of Temple, 100
F.2d 825 (5th Cir. 1939). It was held in Attorney
General's Opinion No. O-1053 that Section 20 of
Article 689a does not authorize the Commissioners'
Court to increase the budget after its adoption.
It is our opinion that the Legislature intended
for the restrictions in Section 11 of Article 689a
to apply to situations where new items were added
to the original budget which would require an
increase in the original budget. This reasoning
is in keeping with the purposes of the budget as
outlined above. In the Rains case, the Court in
distinguishing between the provisions of Section
11 and Section 20 of Article 689a said:
The quoted portion of Art. 689a-11 and
Art. 689a-20 seems to be the only provisions
relating to amendment of the budget. Art.
689a-11 is very specific as to when the
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Honorable Gary A. Goff - Page 8 (JM-784)
county budget may be amended and the steps
to be taken to make the amendment. It is
thought that the restriction as to amendment
applies only when new or additional
expenditures not provided for in the
original budget are sought to be added by
amendment. Under Art. 689a-20, subject to
limitation of Art. 689a-11, a county budget
may be amended at any time. The limitation
of expenditures provided for by the second
amendment to the County budget was not such
as comes within the limitation provided in
Art. 689a-11. (Emphasis added.)
As will be noted from the above quote, the Court
refers to the 'change' in Article 689a-20 as an
'amendment.' It also points out that 'amendment
under Section 11' and 'amendment under Section 20'
of Article 689a are different.
Relying upon Attorney General Opinion C-499, Attorney General
Opinion MW-169 (1980) quoted the following passage from that opinion
in concluding that no grave public necessity was necessary in order to
"change" the budget:
[W!here all of the budgeted funds for a particular
line item have been expended, but there is a
surplus in other line item accounts in the
department budget, and the Commissioners' Court
reallocates the funds, transferring funds from the
surplus line item account to the depleted line
item account, this would require an amendment to
the budget as contemplated by Section 20 of
Article 689a. Also, it is our opinion that funds
may be transferred from the budget of one
department to the budget of another. However,
Constitutional funds may not be transferred in
contravention of Section 9 of Article VIII of the
Texas Constitution. _The transferring of the funds
in both instances 1above do not require new
expenditures not includ,ed in the original budget,
therefore, the provisions of Section 11 of Article
689a are not applicable.
It is our opinion that the correct procedure in
transferring the funds in the above two situations
would be to amend the budget. However, this would
not require the existence of an emergency as
contemplated by Section 11 of Article 689a. An
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Honorable Gary A. Goff - Page 9 (JM-784)
P
order of the Commissioners' Court showing how the
funds were reallocated and showing that the budget
was amended would, in our opinion, suffice to
affect the amendment of the budget under the above
situations. (Emphasis added.)
See also Southland Ice Co. v. City of Temple, 100 F.2d 825 (5th Cir.
1939).
The other construction of the Uniform Budget Law of 1931 reads
article 689a-9. 689a-11, and 689a-20, V.T.C.S., to require an article
689a-11 "budget amendment" in any situation in which the budget is
changed by the commissioners court. Under this construction, an
article 689a-11 amendment is required, both when the court seeks to
re-allocate from one budget item to another surplus money, as well as
when the court seeks to add another item to the budget not included in
the original budget. This construction requires that the court find
that an emergency exist In every instance in which a change (or
amendment) to the budget is sought. See Attorney General Opinions
JM-733 (1987); H-777 (1976); H-12, H-11(1973).
While the language of articles 689a-9, 689a-11, and 689a-20,
r- V.T.C.S., taken together, can certainly be read to support the first
construction, the great weight of authority in the state, with the
obvious exception of Attorney General Opinions C-499 and MU-169.
supports the second. There is no question that the Uniform Budget Law
of 1931 requires that there be an article 689a-11 "budget amendment"
in an instance in which an item, not listed in the originally approved
budget, is added. The issue is whether a re-allocation of surplus
funds from one item in the budget to another item in the budget
requires an article 689a-11 "budget amendment," or whether an article
689a-20 "budget change" is sufficient. Or, in another way. whether
article 689a-20 does actually contemplate a "budget change." On the
basis of prior authority, we conclude that an article 689a-11
"amendment" is required whenever the budget is changed. Attorney
General Opinions JM-733 (1987); H-777 (1976); H-12. H-11 (1973).
Accordingly, we overrule Attorney General Opinions ME-169 (1980) and
C-499 (1965) to the extent of conflict with this opinion.
Many of the attorney general opinions that have construed the
budget law dealt with fact situations involving an addition of an item
to the budget that was not included in the original budget. See,
s, Attorney General Opinions O-6726 (1945); O-6132, O-5863 (1944);
O-4642 (1942); O-4127 (1941); O-2498 (1940); O-1022 (1939). These
opinions concluded that a budget amendment enacted pursuant to article
689a-11, V.T.C.S.. was necessary in order to add an item; that such a
change constitutes an "amendment." This conclusion is consistent with
both of the constructions that have been adopted. See, e.g.. Dancy v.
Davidson, 183 S.W.2d 195 (Tex. Civ. App. - San Antonio 1944, writ
p. 3705
Honorable Gary A. Goff - Page 10 (JM-784)
ref'd); Morrison v. Kohler, 207 S.W.2d 951 (Tex. Civ. App. - Beaumont
1947, writ ref'd n.r.e.). However, many of the attorney general
opinions construing the budget law dealt with fact situations
involving. not additions of items to the budget, but increases in
expenditures for items listed originally in the budget. See, e.g.,
Attorney General Opinions O-6749, O-6689, O-6655, O-6576, O-6470
(1945); O-5184. O-5053 and O-5053A (1943); O-4833 (1942); O-2617
(1940). In every instance, these opinions concluded that, in order
for such a change to be effected in the budget,. an article 689a-11
"amendment" was necessary. See, e.g., McClellan v. Guerra, 258 S.W.2d
72 (Tex. 1953); P.ains v. Mercantile National Bank at Dallas, 188
S.W.2d 798 (Tex. Civ. App. - El Paso 1945), aff'd. 191 S.W.2d 850
(Tex. 1946) [hereinafter Rains]; Bexar County v. Hatley, 150 S.W.2d
980 (Tex. 1941).
It might be argued that this second group of opinions is not
authoritative, because they were issued prior to the Texas Supreme
Court's affirmance of the Rains case In 1946. This argument construes
Rains to support the construction of the Uniform Budget Law of 1931
set out in Attorney General Opinion C-499, which holds that "budget
amendment" and "budget change" are distinct'and separate and provided
for in articles 689a-11 and 689a-20. V.T.C.S., respectively. We
reject this suggestion because, first, we disagree with the
construction of Rains set forth in Attorney General Opinion C-499,
and, second, we think that it is significant that the construction of
the Budget Law that Attorney General Opinion C-499 assumes Rains
stands for was specifically set forth in two earlier Attorney General
Opinions issued during the 1940's and not subsequently followed:
Attorney General Opinions O-6223 (1944), which was obviously not
followed in other later opinions, and O-2427 (1940), which was
impliedly overruled in a subsequent case.
First, we conclude that the language from Rains quoted in
Attorney General Opinion C-499 merely stands for the proposition that
a budget amendment can be effected at any time, not that there is a
distinction between "amendment" or "change" nor that the requirement
of a grave public necessity can be waived for certain sorts of amend-
ments but not for others.
Second, in Attorney General Opinion O-6223, a county auditor
asked the following question:
When the Budget is set and approved by the
Commissioners Court for each officer of the county
and each office has its budget itemized as
postage, deputy hire, bond premium, car allowance,
must the county official stay within his budget as
itemized or stay within it as a Grand Total? I
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Bonorable Gary A. Goff - Page 11 (m-784)
mean by this, if a certain amount is set aeide for
deputy hire, can he only spend that amount for
deputy hire or can he spend his whole grand total
budget just for deputy hire if he wishes?
In concluding that article 689a-20, V.T.C.S., authorized changes
within the objects covered by the budget for county purposes without
any necessary recourse to article 689a-11. V.T.C.S., the opinion
quoted from Southland Ice Co. v. City of Temple, 100 F.2d 825 (5th
Cir. 1939). the first judicial authority to construe the Budget Law:
[Slubdivision 20 of the Budget Law, authorizing
changes in the budget. must refer to changes
within the objects covered by the budget, because
if new matters could be added to the budget, then
the emergency provision would serve no purpose.
For two reasons, we decline to rely upon Attorney General Opinion
O-6223. First, the willingness of this office to construe the Uniform
Budget Law of 1931 in the way in which Attorney General Opinion O-6223
did is suspect at best. Only one other opinion issued during this
period adopted this construction and that opinion was impliedly
overruled by the Texas Supreme Court; opinions issued both prior and
subsequent to the issuance of Attorney General Opinion O-6223
construed the Uniform Budget Law to require an article 689a-11
"amendment" even in an instance in which a commissioners court sought
an increase or decrease for an item listed in the budget as originally
adopted. See, e.g., Attorney General Opinions O-6749, O-6689, O-6655,
O-6576, O-6470 (1945). Second, and more significant, the correctness
of the Southland case, upon which Attorney General Opinion O-6223
relied, was called into question impliedly by the Texas Supreme Court
in Bexar County v. Hatley, 150 S.W.2d 980 (Tex. 1941) [hereinafter
Bexar County]. Bexar County, which will be discussed below, contained
the following language:
If no item had been set up originally to meet the
expense of elections and the amendment had sought
to set up and provide for a new budget object,
another question would be presented, Southland Ice
Company V. City of Temple, 5 Cir., 100 F.2d 825,
829. In that case it is held that under the bud-
set law "the citv could not transfer funds and
&ply them to a new object not mentioned in the
budget. . . .' [Emphasis in original]. Whether
this holding is correct is not necessary to be
determined in the present case, since it appears
from the recitals of the orders and contract set
out above that sufficient funds were available
under the tax levy made on the basis of the
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Honorable Gary A. Goff - Page 12 (JM-784)
original budget to pay the rental expense on the
voting machines. (Emphasis added.)
150 S.W.2d 980 at 988. Because of the above underscored qualifying
language in Bexar County, coupled with the fact that subsequent
opinions failed to follow Southland's reasoning, we conclude that this
office's reliance in Attorney General Opinions C-499 and MW-169 on the
rationale of Southland is misplaced. The other opinion issued in this
period that employed the Southland rationale was impliedly overruled
by the Texas Supreme Court in Bexar County.
In Attorney General Opinion O-2427 (1940), the district attorney
of Bexar County asked whether the commissioners court could amend its
budget to expend money that had initially been budgeted for the
purpose of paying for elections conducted by paper ballot and instead
expend it for the lease-purchase of voting machines. The opinion
declared that article 689a-11. V.T.C.S., was inapplicable. The
opinion adopted the "amendment" versus "change" distinction and
concluded that payment for voting machines out of an appropriation for
election expenses is not a new item requiring an "amendment" to the
budget pursuant to article 689a-11. Instead, it is only a "change"
permitted by article 689a-20. The opinion quoted from Southland and
concluded that the commissioners court's re-allocation was proper.
The opinion was issued in August of 1940. Suit to enjoin the
commissioners court from acting pursuant to the contract entered into
was filed in June, 1940, prior to the issuance of the opinion.
The Texas Court of Civil Appeals in Hatley v. Bexar County, 144
S.W.2d 695 (Tex. Civ. App. - San Antonio 1940, no writ) made no
reference in- its decision-to Attorney General Opinion O-2427, issued
just a few months previously. Whether the court knew of its issuance
is not known. In any event, the court did not agree with either the
rationale or the conclusion of the opinion. The court did not adopt
the opinion's "budget amendment" versus "budget change" distinction.
The court, noting that the county would experience a deficit even in
the event that all of the money appropriated to elections by paper
ballot were expended for voting machines, declared:
The "Budget Law," Art. 689a-11, Vernon's Tex. Civ.
Stats., provides in effect that when the budget is
adopted taxes shall be levied only in accordance
therewith and no expenditure of the county shall
thereafter be made except in strict compliance
with the budget as adopted by the Court. The only
exception to this rule is that emergency expend-
itures may be made in case of grave public necess-
ity. to meet unusual and unforeseen conditions
vhich could not, by reasonably diligent thought
and attention, have been included in the original
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Honorable Gary A. Goff - Page 13 (JM-784)
budget. The rental of the voting machines under
the circumstances set forth in the petition did
not constitute a grave public necessity which
could not have been foreseen. (Emphasis added.)
144 S.W.2d at 698. The court construed the action of the
commissioners court as adding an item to the budget that had not been
included in the budget as originally adopted. The Texas Supreme Court
disagreed.
In Bexar County v. Hatley. 150 S.W.2d 980 (Tex. 1941), the court
concluded that ". . . under our system of county government the
holdinn therein of the elections reauired bv law to be held. is not
only a-1 grave public necessity' but is an absolute public necessity."
150 S.W.2d at 987 (emphasis in original). The court characterized the
action of the commissioners court as a "re-allocation" among budget
items already adopted, rather than as an addition to the budget of an
item not originally included and stated:
It will be noted also that the order amending the
'budget did not require the expenditure of any fund
not already set up for expense of elections in the
county. In other words, the appropriation made by
the amendment was within an object (election
expense) of the budget as originally adopted.
150 S.W.2d at 988. The court specifically declined to characterize
the action of the Bexar County commissioners court as the addition of
a new item: 'If no item had been set up originally to meet the
expense of the elections and the amendment had sought to set up and
provide for a new budget, another question would be presented, [citing
Southland]."
The Texas Supreme Court, when given an opportunity to recognize
the article 689a-11 "amendment" and article 689a-20 "change"
distinction adopted the previous year in Attorney General Opinion
O-2427 in the very same factual situation that gave rise to the
opinion request, declined to do so. In a situation characterized by
the Texas Supreme Court as one involving a re-allocation among objects
provided for in the originally adopted budget, the Texas Supreme Court
concluded than an article 6898-11 "amendment" to the budget was
necessary rather than an article 689a-10 "change" and that the article
689a-11 requirement that only a grave public necessity warrants an
amendment was satisfied in the fact situation presented by Bexar
County. In other words, the Texas Supreme Court, when offered a
chance to so hold, did not adopt the construction of the Uniform
Budget Law adopted by Attorney General Opinions C-499 and NW-169.
Because of the Texas Supreme Court's evident construction of articles
689a-11 and 689a-20 set forth in Bexar County and the overwhelming
p. 3709
Honorable Gary A. Goff - Page 14 (JM-784)
number of early Attorney General opinions so holding, we conclude that
the Uniform Budget Law requires that there be an emergency before
there can be an amendment to the duly adopted county budget.
Accordingly, Attorney General Opinions C-499 and MN-169 are hereby
overruled to the extent of conflict.
We add one caveat regarding the commissioners court's authority
to amend its budget. Generally, a governing body of a political
subdivision has the right to alter or amend any act that it adopts,
including acts appropriating money, unless that right is expressly or
by necessary implication restrained by provisions of the state consti-
tution or statutes or provisions of the United States Constitution
made binding upon the states. See, e.g., In re Advisory Opinion to
the Senate of the State of Photie Island, 275 A.2d 256 (R.1. 1971);
Unemployment Compensation Commission v. Renner, 143 P.2d 181 (Wvo.
1943); Lee V. city of Decatur, 172 So. 284 (Ala. 1937); Car;-".
Frohmiller. 56 P.2d 644 (Aria. 1936); McConnel v. Gallet, 6 P.2d 143
(Idaho 1931,); State ex rel. Board of Regents of Normal Schools v.
Donald, 157 N.W. 782 (Wise. 1916). Both article I. section 16, of the
Texas-Constitution and article I. section 10, of the United States
Constitution expressly prohibit a legislative body from adopting any
act that has as its consequence the impairment of contracts. Sharber
v. Florence, 115 S.W.2d 604 (Tex. 1938); Langever v. Miller, 76 S.W.2d -;
1025 (Tex. 1934). Accordingly, the only limitation would arise
regarding unencumbered funds. We conclude that a commissioners court
does have authority in the situation that you describe to re-allocate
among the various precincts, some or all of the unencumbered money
from the road and bridge fund previously appropriated to specific
precincts and unexpended at the end of the year.
You next ask:
Are the provisions of section 3.101(c) of
article 6702-l. V.T.C.S., applicable to a
commissioners court which has not employed road
commissioners under subchapter B of chapter 3 of
article 6702-I; and, if not. is the commissioners
court under any general obligation to expend road
and bridge funds in proportion to the amount of
funds collected in each precinct7
We answer both of your questions in the negative. Section
3.101(c) of the act is contained in subchapter B, which sets forth the
provisions for the optional commissioners court/road commissioner or
road supervisor system. It provides the following:
The commissioners court shall see that the road
and bridge fund is judiciously and equitably
expended on the roads and bridges of its county.
p. 3710
.
Bonorable Gary A. Goff - Page 15 (JM-784)
As nearly as the condition and necessity of the
roads will permit, the fund shall be expended in
each commissioners precinct in proportion to the
amount collected in the precinct. Money used in
buildina permanent roads shall first be used onlv
on first-class or second-class roads and on those
roads that have the right-of-way furnished free of
cost to make as straight a road as is practicable
and that have the greatest bonus offered by the
citizens of money, labor, or other property.
Wphasis added.)
None of the three optional methods of organization may be
implemented without an affirmative act on the part of either the
commissioners court (in the case of implementing subchapter A or
subchapter B) or the voters (in the case of subchapter C). In this
instance, you inform us that no action has been taken by either the
voters or by the commissioners court. Therefore, the court is not
governed by the provisions of chapter 3 and section 3.101(c) is
inapplicable. Nor have we found any other provision of the act that
requires the commissioners court to expend money in the road and
bridge fund in each precinct in roughly the same proportion as taxes
are collected. The commissioners court is the governing and adminis-
trative bodv of a countv in Texas: it has the Dower to determine the
county budget and make appropriations of funds. See Tex. Const. art.
X, $18; Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980), cert. denied,
450 U.S. 931 (1981). Absent a specific provision to the contrary, the
discretion to make such decisions is reposed solely in the commis-
sioners court. Accordingly, we conclude that section 3.101(c) of the
act is not applicable to a commissioners court that does not employ
road commissioners pursuant to subchapter B of chapter 3. Nor is the
commissioners court under a general obligation to expend money in the
road and bridge fund in proportion to the amount of the money
collected in each precinct.
Finally, you ask:
Does a commissioners court have the authority to
allocate road and bridge funds to each precinct in
a way other than in proportion to the amount
collected in each precinct based primarily on the
fact that the precincts retain disproportionate
amounts of road and bridge funds carried over from
allocation in previous years?
Articles 989a-9 through 989a-11, V.T.C.S., confer the authority
and the responsibility to the commissioners court to adopt a budget
appropriating county funds for legitimate county purposes. There is
P nothing in either the statutes quoted above or in the County Road and
p. 3711
Honorable Gary A. Goff - Page 16 (JM-784)
Bridge Act that acts to restrict the court's discretion in the manner
that concerns you. +e generally Bexar County v. Ratley, 150 S.W.2d
980 (Tex. 1941); Web!er v. City of Sachse. 591 S.W.2d 563 (Tex. Civ.
APP. - Dallas 19:r9. no writ). Accordinnlv.
- _- we answer vour third
question in the affirmative.
SUMMARY
A commissioners court has authority to
re-allocate, among the various precincts, some or
all of the road and bridge funds previously
appropriated to specific precincts and unexpended
at the end of the fi,scalyear. Section 3.101(a)
of the act is inapplicable to a cowaissioners
court that does not employ road commissioners
pursuant to subchapter B of chapter 3 of the act;
the commissioners court is under no general
obligation to expend money in the road and bridge
fund in proportion to the amount of the money
collected in each precinct. A commissioners court
organized as road supervisors pursuant to chapter
2 of the act has discretion to allocate money in
its road and bridge fund in a manner that takes
into consideration the amount of funds previously
appropriated to any one precinct, but unexpended.
In order for a budget amendment to be effective, a
commissioners court must comply with article 689a.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 3712