Honorable Gary A. Goff 

Hockley County Attorney 

Courthouse 

Levelland, Texas 79336 

Opinion No. JM-784 

Re: Re-allocation of road and 

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 Sections 2.041 and 2.043 of the act have been repealed, 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. 

p. 3697 
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 

conuaissloners court 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 commissioners are employed, the county commissioners 

shall be supervisors of public roads in their 

respective counties, and each colmnissioner shall 

supervise the public roads within his commissioner'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 

p. 3698 
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 submitted, 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 commissioners 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 maintenance 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~tially appropriated. 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 inhabitants 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 conferring 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 

p. 3703 
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 1 

expenditures not includ, 

therefore, the provisions of Section 11 of Article 

689a are not applicable. 

above do not require new 

ed in the original budget, 

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 

p. 3704 
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). 

rWhile the language of articles 689a-9, 689a-11, and 689a-20, 

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 amendments 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 

p. 3706 
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 budset 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 

p. 3707 
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 expenditures may be made in case of grave public necessity. to meet unusual and unforeseen conditions 

vhich could not, by reasonably diligent thought 

and attention, have been included in the original 

p. 3708 
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 

-1 only a g rave 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 constitution or statutes or provisions of the United States Constitution 

81 (Wvo. 

made binding upon the states. See, e.g., In re Advisory Opinion to 

the Senate of the State of Phot ie Island, 275 A.2d 256 (R.1. 1971); 

Unemployment Compensation Commission v. Renner, 143 P.2d 1 

1943); Lee 172 So. 

Frohmil ler. 

V. city of Decatur, 284 (Ala. 1937); Car;-". 

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 administrative 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 commissioners 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? 

P 

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 

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! 

APP. - Dallas 19: 

er v. City of Sachse. 591 S.W.2d 563 (Tex. Civ. 

r9. no writ). 

question in the affirmative. 

Accordinnlv. - _- we answer vour third 

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,scal year. 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