HonorableGaryA. Goff

Hockley CountyAttorney Courthouse Levelland,Texas 79336 Opinion No. JM-784

Re: Re-allocationof road and bridge fundsby a commissioners court,and relatedquestions

DearMr. Goff:

Article 6702-1,l V.T.C.S., the County Road and Bridge Law [hereinafterthe act I, details the authority and responsibilitiesof commissioners courts regarding construction and maintenance of a county’s roads’andbridges. You ask three questions about the proper constructionof the act, specificallyabout the commissionerscourt’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 fiscalyear. Second,we conclude that section 3.101(c) of the act is not applicable to a commissioners court that does not employ road commissionerspursuant to subchapter B of chapter 3 of the act; the commissionerscourt is under no general obligation to expendmoney 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 commissionerscourt organized as road supervisors pursuant to chapter 2 of the act has discretion to allocatemoney in its road andbridge fund in amanner that takes into .considerationthe 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 Sections 2.041 and 2.043 of the act have been repealed, effective September 1. 1987.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. 3697HonorableGaryA. Goff - Page 2 (JM-784)

Before we address your first question, a general discussion of the actmight provehelpful. The act sets forthprovisionsapplicable 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. SubchaptersA through E specify the authorityand responsibilityof commissionerscourts 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 legislativeand administrativebody, not on individualcommissioners.

The act also sets forth three optionalmethods of organizing the conuaissloners

court for road and bridge construction and maintenance. If none of the optionalmethods 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, exceptwhen road commissionersare 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 colmnissionershall supervise the public roads within his commissioner'sprecinct once eachmonth. He shall also make a sworn report to each regular term of the commissioners court held In his county during the year, showing:

(1) thencondition of all roads and parts of roads inhis precinct;

(2) the conditionof all culvertsandbridges;

(3) the amount ofmoney remaining in thehands of overseers subject to be expended on the roads withinhis precinct:

(4) the number of mileposts and fingerboards defacedor torndown;
**(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. 3698HonorableGaryA. Goff - Page 3 UM-784)

(6) the name of every overseerwho has failed to work on the roads or who in any way neglected toperformhis duty.
(b) The report shallbe spread on theminutes of the court to be considered in improvingpublic roads and determining the amount of taxes levied forpublic 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 ismade to the commissionerscourt.

The act also provides in chapter 3 optionalmethods 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 directionof the commissionerscourt

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, themaking or changingof roads, and thebuilding of bridgesunderrules adoptedby the court.

V.T.C.S. art. 6702-l. 93.001(a). Section 3.002(a) further specifies thepowers of the commissionerscourt:

The commissioners court shall adopt a system for working. laying out, draining, and repairing the public roads as it considersbest, and from time to time the courtmay change itsplan or systemof working.
SubchapterB provides for a commissionerscourt/roadcommissioner
or road supervisor system. The subchapterauthorizesa 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. 3699HonorableGaryA. 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 commissionerscourt serving as the policy-determiningbody and an appointed county road engineer serving as chief executive officer. Section 3.208 sets forth the county road engineer'sduties. Section 3.210provides:

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-fivepercent 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 precinctshad a surplus of over $100,000. One precinct's fund surpluswas only $45,000. You informus thatnone 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 andbridgepurposes some, or all, of road and bridge funds previously allocated to particular precincts and unexpendedat the end of theyear? ?

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 understandyou 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 themoney was inj~tially appropriated. We also note thatHockley County has a population of less than 25,000 inhabitants according to ?

p. 3700HonorableGaryA. Goff - Page 5 (JM-784)

the 1980 federal census. Therefore, article 1666a,2V.T.C.S.,which applies to countieswhose 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 authorizesnor prevents such a re-allocation; the Uniform Budget Law of 1931,however,does authorizea budget re-allocationor 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 countybudget --which hearing shall takeplace on some date tobe named by the Commissioners'Court subsequent toAugust 15thand prior to the levy of taxesby saidCommissioners'Court. Publicnotice 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 shallname thehour, the date and theplace where the hearing shall be conducted. Any taxpayerof such county shallhave the right tobe present and participate in said hearing. At the conclusion of the hearing, thebudget as prepared by the County Judge shall be acted upon by the Commissioners' Court. The Court shall have authority tomake such changes in thebudget as in their judgment the law warrants and the interest of the taxpayersdemand. When thebudgethas been finally approvedby 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. 70thLeg., 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. 70thLeg.. ch. 149. 12. at 2475.

p. 3701EonorableGary 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 conditionswhich couldnot,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 originalbudget is made, a copy of the order of the Court amending the budget shallbe filedwith theClerk of the County Court, and attached to the budget originally adopted. (Emphasisadded.)

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 thebudget for Statepurposes or prevent the County Commissioners' Court from making changes in the budget for county purposes or prevent the governingbody of any incorporated city or town frommaking changes in thebudget 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 compensationnow provided by law tobe paid said officersrespectively.

It is clear from a reading of articles 689a-9. 689a-11, and 689a-20.V.T.C.S., thata commissionerscourtmay amend itsbudget; it is less clear under what circumstances such an amendment may be effected. Two different constructions have been adopted by this office. One constructionreads 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. ljnderthis 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 necessarywhen an itemwas added to thebudget thathad not been included in the budget as originally adopted. An increase (ordecrease) in the expenditureof 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. 3702HonorableGary **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 officewas asked about the proper procedure that a countymust follow to amend itsbudget in an instance inwhich all of the appropriated money for a particular **item** or object had been expendedbut therewas a surplus in the accountof 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 discussionof the distinctionbetween 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 expresslyauthorizes the Commissioners to make changes in the county budget for county purposes. However, these changes are limited to changeswithin the objects covered by the budget. -Rains v. Hercaitile NationalBank of Dallas, 188 S.W.2d 798 (Tex.Civ. App. 1945). affirmed 144Tex. 490, 191 S.W.2d 850 (1946); Southland Ice Co. v. City of Temple, 100 F.2d 825 (5thCir. 1939). Itwas held inAttorney General's Opinion No. O-1053 that Section 20 of Article 689adoes not authorize the Commissioners' Court to increase thebudget after its adoption.

It is our opinion that theLegislature intended for the restrictionsin Section 11 of Article 689a to apply to situationswhere new itemswere 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 distinguishingbetween the provisions of Section 11 and Section 20 of Article 689a said:

The quoted portion of Art. 689a-11 and Art. 689a-20 seems tobe the onlyprovisions relating to amendment of the budget. Art. 689a-11 is very specific as to when the

p. 3703HonorableGary 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 restrictionas 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 limitationof Art. 689a-11, a countybudget may be amended at any time. The limitation of expenditures provided for by the second amendment to the Countybudget was not such
as comes within the limitation provided in Art. 689a-11. (Emphasisadded.)

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 'amendmentunder Section 20' ofArticle 689a are different.
Relying upon Attorney General Opinion C-499, Attorney General Opinion MW-169 (1980) quoted the followingpassage from that opinion in concluding thatno gravepublicnecessitywas necessary in order to "change" thebudget:

[W!hereall of thebudgeted 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 reallocatesthe funds, transferringfunds 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 contraventionof Section 9 of ArticleVIII of the Texas Constitution. _Thetransferringof the funds in both instances 1 expendituresnot includ, therefore,theprovisionsof Section 11 of Article 689a are not applicable. above do not require new ed in the originalbudget,

It is our opinion that the correctprocedure in transferringthe funds in the above two situations would be to amend thebudget. However, thiswould not require the existence of an emergency as contemplated by Section 11 of Article 689a. An

p. 3704HonorableGaryA. Goff - Page 9 (JM-784)

P

order of the Commissioners'Court showing how the fundswere reallocatedand showing that thebudget
was amended would, in our opinion, suffice to affect the amendmentof thebudget under the above situations. (Emphasisadded.)

See also Southland Ice Co. v. City of Temple, 100 F.2d 825 (5thCir. 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-allocatefrom one budget item to another surplusmoney, as well as when the court seeks to add another **item** to thebudgetnot included in the originalbudget. This constructionrequires 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 certainlybe 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 theUniform BudgetLaw of 1931 requires that there be an article 689a-11 "budget amendment" in an instance inwhich an item,not listed in the originallyapproved 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 OpinionsME-169 (1980)and C-499 (1965)to the extent of conflictwith this opinion.

Many of the attorney general opinions that have construed the budget law dealtwith fact situations involvingan additionof an item to the budget that was not included in the original budget. See, s, Attorney General OpinionsO-6726 (1945);O-6132, O-5863 (1944); O-4642 (1942); O-4127 (1941); O-2498 (1940); O-1022 (1939). These opinionsconcluded thata budget amendmentenactedpursuant to article 689a-11,V.T.C.S..was necessary in order to add an item; that such a change constitutesan "amendment." This conclusionis consistentwith both of the constructionsthathave been adopted. See, e.g..Dancyv. Davidson, 183 S.W.2d 195 (Tex. Civ. App. - San Antonio 1944, writ

p. 3705Honorable GaryA. 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.,McClellanv. Guerra, 258 S.W.2d 72 (Tex. 1953); P.ainsv. 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) [hereinafterRains]; 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 affirmanceof theRains case In 1946. This argumentconstrues 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 constructionof the Budget Law that Attorney General Opinion C-499 assumes Rains stands forwas specificallyset forth in two earlierAttorney 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 impliedlyoverruled in a subsequentcase.
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 amendmentsbut not for others.

Second, in Attorney General Opinion O-6223, a county auditor asked the followingquestion:

When the Budget is set and approved by the CommissionersCourt for each officer of the county and each office has its budget itemized as postage,deputyhire,bond premium, car allowance, must the county official staywithin hisbudget as itemized or stay within it as a Grand Total? I

p. 3706BonorableGary A. Goff - Page 11 (m-784)

mean by this, if a certainamount is set aeide for deputy hire, can he only spend that amount for deputy hire or can he spendhis whole grand total budget just for deputyhire if hewishes?

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 judicialauthority to construe theBudget Law:

[Slubdivision 20 of the Budget Law, authorizing changes in the budget. must refer to changes within the objects coveredby the budget, because if new matters couldbe added to thebudget, then the emergency provisionwould serveno purpose.

**For** two reasons,we decline to relyuponAttorneyGeneralOpinion O-6223. First, thewillingnessof this office to construe theUniform BudgetLaw of 1931 in theway inwhichAttorneyGeneralOpinion O-6223 did is suspect at best. Only one other opinion issued during this period adopted this construction and that opinion was impliedly overruledby the Texas Supreme Court; opinions issuedboth 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 commissionerscourt sought
an increaseor decrease for an item listed in thebudget as originally adopted. See, e.g.,AttorneyGeneralOpinionsO-6749,O-6689, O-6655, O-6576, O-6470 (1945). Second, andmore significant, the correctness of the Southland case, upon which Attorney General Opinion O-6223 relied,was called into question impliedlyby the Texas Supreme Court in Bexar County v. Hatley, 150 S.W.2d 980 (Tex. 1941) [hereinafter Bexar County]. Bexar County,which will be discussedbelow, contained the following language:

If no **item** had been set up originally tomeet the expense of elections and the amendmenthad sought to set up and provide for a new budget object, anotherquestionwouldbe presented,Southland Ice CompanyV. 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. 3707HonorableGaryA. Goff - Page 12 (JM-784)

original budget to pay the rental expense on the votingmachines. (Emphasisadded.)

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'sreasoning,we conclude that this office'sreliance inAttorneyGeneralOpinions C-499 andMW-169 on the rationaleof Southland ismisplaced. The other opinion issued in this period that employed the Southland rationale was impliedly overruled by theTexas SupremeCourt in Bexar County.

In Attorney General Opinion O-2427 (1940), the district attorney of Bexar County askedwhether the commissionerscourt could amend its budget to expend money that had initially been budgeted for the purpose of paying for elections conductedby 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 thatpayment forvotingmachines out of an appropriationfor 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 commissionerscourt from acting pursuant to the contract entered into
was filed in June, 1940,prior to the issuanceof 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 fewmonths previously. Whether the court knew of its issuance is not known. In any event, the court did not agreewith either the rationaleor 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 ballotwere expended forvotingmachines, declared:

The "BudgetLaw," Art. 689a-11,Vernon'sTex. Civ. Stats.,provides in effect thatwhen thebudget 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 thebudget as adoptedby the Court. The only exception to this rule is that emergency expendituresmay be made in case of gravepublicnecessity. to meet unusual and unforeseen conditions vhich could not, by reasonably diligent thought and attention,have been included in the original

p. 3708HonorableGaryA. 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 couldnot havebeen foreseen. (Emphasisadded.)

144 S.W.2d at 698. The court construed the action of the commissionerscourt as adding an item to the budget thathad not been included in thebudget as originallyadopted. The Texas SupremeCourt disagreed.

In Bexar Countyv. 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 grave public necessity'but is an absolutepublic necessity." 150 S.W.2d at 987 (emphasis**in** original). The court characterizedthe action of the commissioners court as a "re-allocation" among budget items already adopted, rather than as an addition to the budget of an itemnot originallyincludedand stated:

It will be noted also that the order amending the 'budgetdid not require the expenditureof any fund not already set up for expenseof elections in the county. In otherwords, the appropriationmade by the amendment was within an object (election expense)of thebudget as originallyadopted.

150 S.W.2d at 988. The court specifically declined to characterize the action of the Bexar County commissionerscourt 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 questionwouldbe 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 characterizedby theTexas SupremeCourt as one involvinga re-allocationamong objects provided for in the originallyadoptedbudget, theTexas SupremeCourt concluded than **an** article 6898-11 "amendment" to the budget was necessaryrather thanan 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 constructionof articles 689a-11 and 689a-20 set forth in Bexar County and the overwhelming

p. 3709HonorableGary A. Goff - Page 14 (JM-784)

number of earlyAttorneyGeneral 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 extentof conflict.

We add one caveat regarding the commissionerscourt's authority to amend its budget. Generally, a governing body of a political subdivisionhas the right to alter or amend any act that it adopts, includingacts appropriatingmoney, unless that right is expressly or by necessary implicationrestrainedby provisionsof 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, 157N.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 legislativebody from adopting any act thathas as its consequence the impairmentof contracts. Sharber
v. Florence, 115 S.W.2d 604 (Tex. 1938);Langeverv. Miller, 76 S.W.2d 1025 (Tex. 1934). Accordingly, the only limitation would arise regarding unencumbered funds. We conclude that a commissionerscourt does have authority in the situation thatyou 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 precinctsand unexpendedat the end of theyear.

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 commissionersunder 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 eachprecinct7

We answer both of your questions in the negative. Section 3.101(c)of the act is contained in subchapterB, 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.
BonorableGaryA. 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 firstbe used onlv
on first-classor second-classroads and on those roads thathave the right-of-wayfurnishedfree 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 commissionerscourt is the governing and administrativebodv of a countv in Texas: it has the Dower to determine the countybudget andmake appropriationsof funds. See Tex. Const. art. X, $18; Rheuark v. Shaw, 628 F.2d 297 (5thCir. 1980), cert. denied, 450U.S. 931 (1981). Absent a specificprovision 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 commissionerspursuant to subchapterB of chapter 3. Nor is the commissionerscourt under a general obligation to expendmoney in the road and bridge fund in proportion to the amount of the money collected in eachprecinct.
Finally,you ask:

Does a commissioners court have the authority to allocateroad andbridge funds to eachprecinct in
a way other than in proportion to the amount collected in each precinctbased primarily on the fact that the precincts retain disproportionate amountsof road andbridge funds carriedover from allocation inpreviousyears?

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 appropriatingcounty funds for legitimate county purposes. There is nothing in either the statutes quoted above or in the CountyRoad and

p. 3711HonorableGaryA. Goff - Page 16 (JM-784)

Bridge Act that acts to restrict the court's discretion in themanner 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 subchapterB of chapter 3 of the act; the commissioners court is under no general obligation to expendmoney in the road and bridge fund in proportion to the amount of the money collected in eachprecinct. A commissionerscourt organized as road supervisorspursuant 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 commissionerscourtmust complywith article 689a.

JIM MATTOX AttorneyGeneral of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STKAKLRY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby JimMoellinger AssistantAttorneyGeneral

p. 3712