February 20, 1970

Hon. Enrique H. Pena CountyAttorney El Paso County Room 201, City-CountyBldg. El Paso, Texas 79901

Dear Mr. Penar OpinionNo., M- 584

Re: Authority, if any, of CommissionersCourt of El Paso County to increase the amount of anticipated revenue over the amount submitted in the budget of the County Auditor acting as budget officer.

In your letter requesting an opinion from this office, you state the following facts:

“TheCommissioners’Court at its budget hearing on January 12, 1970, Increased the amount of’estimated revenue by $99,090.00, such increasenot being within the anticipated revenue for the gear 3,970, as estimated by the County Auditor. The Commissioners’Court has determined that they have the power to increase the anticipated revenue for the year 1970 over the anticipated revenue estimated by the. County Auditor and that they have authority to do so, anticipating that theymay sell some land belonging to the County, there being no contract for sale nor appraisals of the value of the land in possession of the Auditor at the time the budget was preparedand submitted to the Commissioners’Court by the Auditor. 1,

. . . the population of El Paso County in the 1aat’c;nsuswas 314,000.

. . .”
With regard to these facts,you ask the following questions:

-2784-Hon. Enrlque H. Pena, page 2 (~-584)

'Does the Commissioners'Court have authority to Increase the amount of anticipatedrevenue under the facts outlinedabove?

"Can Commissioners'Court Increase the anticipatedrevenue over and above the revenue anticipatedby the CountyAuditor in a county of 314,000population?

'Is land ownedby the countywhich Is anticipated to be sold by the county In the current year, and Is estimated to be of a given value by the Commissioners'Court, there being no contract of sale concerning said land,nor appraisal other than that valued by the Commissioners'Court, subject to be anticipatedas revenue for the current year budget? I, 41

. . . Attorney General's Opinion ~~-765 (1959)holds as follows:
"After the office of County Auditor was createdand Article 1665 and Article 1666a, Vernon's Civil Statutes,were passed, a new, entire and Independent system of rules and laws were passed relative to the countybudget and county financial reports in countieswith a population In excess of 225,000, thereby supersedln 1635 and 8 and repealingArticles 1634,

1 36, Vernon's Civil Statutes, lnsofar as said articles pertained to such counties."

In view of the holding In this prior opinion,which prior opinion it is the policy of this office to followunless plainly in error, the CountyAuditor of El Paso County Is the budget officer for the CommlsslonersCourt.

Article 1666a, Vernon's Civil Statutes,provides, In part, as follows:

"TheCountyAuditor In all countieshaving a population In excess of two hundred and twentyfive thousand (225,000)as shownby the last

-2785-Hon. Enrique H. Pena,page 3 (M-584)

preceding or any futureUnited States Census shall serve as the budget officer for the Commissioners Courts in each county, and on or immediatelyafter January 1st of each year he shallprepare a budget to cover all proposed expendituresof the county government for the current fiscal and calendaryear. Such budget shall be carefully itemized so as to make possible as clear a~comparlsonas practicablebetween expenditures Included in the proposed budget and actual expendituresfor the same or similarpurposes for the preceding year. The budget shallbe so prepared as to show with reasonable accuracy each of the variousprojects for which appropriationsare set ,upIn the budget, and the estimated amount of money carried in the budget for each of suchprojects. The budget shall contain a complete financial statement of the county, showing all outstanding obligations of the county, the cash on hand to the credit of every and each fund of the county government, the funds received from all sourcesduring the previousyear, the funds and revenue estimated by the Auditor to be received from all sourcesduring the previous year, the funds and revenue estimated by the Aud-r 'to be received from all sources durlnR the ensuing year, togetherwith a statementor all accounts and contracts on which sums are due to or by the county as of December 31st of the year preceding, except taxes and court costs.

. . . ,I

. . . the budget as preparedby the County Auditor shall be acted upon by the Commissioners Court. The Court shall have authority to make such changes In the budget as In its judgment the'facts and the law warrant and the Interest of the taxpayersdemand, provided the amounts budgeted for current expenditures from the various funds of the county shall not exceed the balances in said funds as of January 1st plus the anticipatedrevenue for the current ear for which the budget Ismade, as estimated y the CountyAuditor.

. . .'* (Emphasisadded.)

-2786- 1.

Hon. Enrique Ii.Pena,page 4 (~-584)

In view of the plain and unambiguous language of Article 1666a,Vernon's Civil Statutes, It Is our opinion, in answer to your first two questions, that It Is the County Auditor of El Paso County and not the CommissionersCourt who has the authority to prepare a budget to includeestimated anticipated revenue for the budgetyear 1970;and the ConunlssionersCourt does not have the authority to budget an amount for the currentyear which exceeds the anticipatedrevenue as estimatedby the CountyAuditor.

In answer to yoke third question,you are advised that there Is no provision in Article 1666a,Vernon's Civil Statutes,which would have prohibited the County Auditor of El Paso County from anticipating in the currentbudget revenue to be received by the county from a proposed sale of real estate during 1970. It has been held thatunder the general budget laws pertaining to counties of less than 225,000population that the budget officerswho have express authority to estimate anticipatedrevenues have discretion In exercising that authority. Attorney General's Opinion O-1231 (1939); Guerra v. McClellan, 250 S.W.2d 241 (Tex.Clv.App.1952 affirmed 2% S W 2d 72 (Tex.Sup. 1953); Guerra v. Rodriquez, 27 1 S.W.2d 715 (!i'e;.Clv.App. 1955, error ref. n.r.e.). It Is our opinion that thisproposition of law Is applicable to the CountyAuditor's authorityunder the provisions of Article 1666a,Vernon's Civil Statutes. Consequently,you are advised It Is our opinion that it was within the discretion of the CountyAudltor,to fail to estimate as anticipatedrevenue any amount based upon a proposed sale of county-ownedreal estate during 1970. However, this opiniondoes not pass on the question of whether the County Auditdr properly exercised his discretion In this regard.
SUMMARY

It is the County Auditor of El Paso County and not the CommissionersCourtwho has the authority to budget for anticipatedrevenue for the budget year 1970 and the CommlsslonersCourt does not have the authority to budget an amount for the currentyear which exceeds the anticipated revenue as estimatedby the County Auditor.

It was within the discretion of the County Auditor to fall to estimate as anticipatedrevenue any amount based upon a proposed sale of countyowned real estate during 1970.

-2787-. . .

Hon. Enrique H. Pena, page 5 (M-584)

MARTIN neral of Texas Prepared by Ivan R. Williams, Jr. Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman Gordon Cass Richard Chote Howard Fender Donald Cummings

MEADE F, GRIFFIN Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant

-2788-