September ~2.~ 1948 

Hon. F. A. Taylor Opinion Ro. V-694 

County Auditor 

Brssoria County 

Angleton, Texas 

Re: Authority of Coramissioners I Court to amend 

its budget to construct 

a road and to buy land 

to enlarge storage for 

road machinery not included in the original 

budget. 

Dear Sir: 

We refer to letter in which you submit the 

following: 

"First, under .the Optional Road Law of 

1947, we are operating under a strict budget 

system. We have a budget’ for road maintenance in the amount of $271,300.00 to be used 

In the upkeep of the present roads and bridges. 

And we also set u a roe,d construction budget 

in the amount of 8 495,712.48. This amount for 

the constructlon budget is composed of the efitimated cost of the construction of the roads 

enumerated in the budget, and contingent fund 

of $31.274.98. The question under consideration now came up when the Coinmissioners Court 

Instructed the Engineer to construct a road 

that was noton construction budget, and to 

for it out of the contingent fund. (Emphaadded throughout this opinion) 

” 

. . . 

“Therefore I will ask you if the Commissioners Court has the authority to purchase 

the lots referred to In the lnclosed letter, 

and to order the construction of a road not 

in the budget for this year, and pay for it 

out of the cc@ingent fund of the construction budget? 
. 

490 Hon. F. A. Taylor, page 2 W-694 1 

Your reference concerning the'lots is to a letter written by Hon. Sam Lee, County Attorney, to Ron. E. 

W. Oarnett, County Engineer of Rrasoria County, from 

which we quote: 

"With reference to the lots to be purchased by the court for the purpose of storing road equipment thereon, from the facts, 

I believe an emergency exists. I understand 

that the present lots are insufficient to 

house the equipment and unless these adjoining lots are purchased immedi$tely they will 

be sold to private interests. 

An examination of a copy of the Braeoria County budget for the year 1948 in the Comptrollerfs.OfSice, 

reveals that three items mentioned in your request appear 

under the general heading of Road and Bridge Fund and are 

listed under the specific heading of Precinct Rxpendltures (all precincts combined) $271,300,00 is "earmarked" for maintenance costs; $4$4,437.50 is 'earmarked' 

for '"48 Construction Projects and the $31,274.98 Is 

"earmarked" for contingencies. 

$464,437.50 is to be used for 

According to,the budget 

48 road projects without 

naming, identifylng,or describing any of said projects \ 

within the budget. But from the County Judge, County 

Attorney, County Auditor 

ed that even though the 

and County Engineer we learn- 

&'road construction projects 

were not named within the 1948 budget, the Commissioners' 

Court had specifically designated the 48 projects on 

whLch the above money would be used; and in addLtion 

thereto, it specified the exact amount that would be expended on each of said projects. 

Although this contingency is just as much an 

appropriation for road and bridge purposes as the appropriations for maintenance and cons;ruction costs6 so 

long as the money Is "earmarked" for contingencies It 

can only be used for items which will necessarily arise 

during the budget year but which cannot appropriately be 

classified under any of the specific purposes set out 

elsewhere in the budget. First Rational Bank of Norman 

v. City of Norman, 75 P.(2d) 1109. A contingent fund is 

set up for minor disbursements incidental to the principal classes of expenditures, enumerated in the budget, 

wh3ch would be useless to specify more accurately. Dunwoody v. United States, 22 Court of Claims Reports, 269. 

Applying the abov~e principles to the instant i i
Hon. F. A. Taylor, page 3 (V-694) 491 

case, it is. our’opinion that the cost of constructing a 

road not specified in the original budget could not be 

pala for directly out of the contingent appropriation 

of the road and bridge fund without first amending the 

county budget provided for in Articles 689a-g-10-11-12 

and 20, V. C. S. The question for our determination 

therefore is whether the Commissioners* Court of Brasoria 

County has the authority to amend its budget so as to include the road construction now under consideration. 

In the case of Dancy v. Davidson, 183 S. W.(2d) 

195, writ refused the court had under consideration the 

authority of the bornmissioners I Court to purchase a certain building which was not provided for In the budget. 

The trial court granted an Injunction prohibit1 the 

Commissioners’ Court from buying the property. 3 he 

Court of Civil Appeals held that no sufficient order had 

been made to authorize the purchase but modified the lnjunction so as to permit the commissioners1 Court to appropriately amend the budget to provide funds for such 

purchase. We quote the following from said case at page 

201: 

” Appellants 'construe the injunction 

&iei as prohibiting the purchase of the 

building even though the budget law be 

complied with by appropriate action In the 

future. The decree itself seems to be limited to the order of April 29, 1944, which, 

as above pointed out, is insufficient in 

Itself, under the budget law, to authorize 

the paying out of public funds. However, 

in order to remove all doubt as to the construction or effect of the decree the same. 

will be reformed so as to restrain Cameron 

County and Its Commissioners1 Court from 

paying to Mrs. Jennie B. Bell any sum,of 

public monies under the order of April 29, 

1944, standing clone, without prejudice however, to such otherand further actions as 

may be taken by said County and its Commissloners’ Court with reference to the proposed purchase of the building involved. . .' 

In the case of Bexar County v. Hatleg, 136 Tex. 

354, 150 S.W.(2d) 980, the Supreme Court had under consideration the authority of the Commissioners' Court to 

amend its county budget which originally contained, among 

numerous funds set up and appropriated for various coun- 
492 Hon. F. A. Taylor, page 4 (V-694) 

ty purposes, a fund of $16,000.00 to cover the expense 

of holding elections in the county. Such fund was itemized as follows: 

“Judges and Cleliks 

Repairing booths and 

$ 9,275000 

ballot boxes 100.00~ 

Delivering ballot boxes 600.00 

Rent chairs, tables & supplies &);.gE 

Hauling election equipment 

PrLnting, stationery, stamps 4,200:OO 

Advertising 25.00 

School Judses and Clerks 20b 0 00 

$ 16,OOO.OO” 

The Commissioners Court passed an order amending its 

budget so as to provide for the rental~of three hundred 

voting machines with an option to purchase, and the order decreed that the original budget “be so amended that 

the fund remaining unexpended ($15,824.84) of the $16,- 

000.00 (itemized above) budgeted to elections In the general fund, be reallocated and expended as follows: 

Freight on * * * 210 voting 

machines delivered to San 

Antonio 

Full coverage insurance * * * 

$ 6,100.OO 

on * * * 300 voting 

machines 350.00 

Storage on * * * 300 voting 

machines for June and 

July, 1940 300.00 

Drayage 

Part payment on rental 

MiscelIaneous expense 

._, . .j ,\ 

zl,joti.oo 

574.34 

Total $ 15,~2?.84” 

The Supreme Court in holding that the Commissioners’ Court had,the authority to expend county money 

for the rental of voting machines after amendment of the 

budget as pointed out above made the following observation: 

“We cannot agree with the contention of 

plaintiffs that the commissioners’ court was 

without authority to amend its budget. 

‘It is apparent from the act requiring 0 
Hon. F. A. Taylor, page 5 (V-694) 

the court to adopt an annual budget for carry-, 

ing on the county's business that the legis-, 

lature recognized some latitude must be allowed, within the restrictions imposed with respect to the mode of operation, to make the budg- 

.,get plan workable; and that a budget as originally made and adopted, because of expendltures necessitated by %.nusual and unfopeseen 

conditions which could not, by reasonably dlligent thought and attention, have been lncluded in the original budget' might 'from time to 

time' be amended to meet such 'emergency expenditures, in case of grave public necessity.’ 

Arts. 68ga-11, 68ga-20, supra. 

II 

. . . 

"It can hardly be said conclusively that 

the court was.lacking in 'reasonably qiligent 

thought and attention' in not adopting voting machines for election purposes at the time 

it made the original budget, or that it was 

an abuse of their discretion to adopt the'm 

when it did so. It Is fair to assume that the 

circumstances making it advisable and to the 

county's best interest to adopt voting machines came about after the original budget 

had been set up and were not then foreseen. 

The commissioners' court, having authority 

to adopt voting machines, and having done so, 

had '8 broad discretion to accomplish the 

purposes intended,' so long as it observed 

the constitutional and statutory limitations 

imposed upon it. Dodson v. &r&all, Tex. 

Civ. App., 118 S.w.2d 621~, 623. Certainly 

it would be unfair to assumeagalnst the members of the court, who are presumed to have 

acted lawfully.in the discharge of their 

duties, that they intended to act unlawfully. 

"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 txpense) 

of the budget as originally adopted. 

In view of the foregoing, we are of the opin- 
I i 

494 Hon. F. A. Taylor, page 6 (V-694) 

ion that i .f the Commissioners' Court determines that a 

necessity exists for the construction of a road not provided for in the budget, said court may amend the budget 

as provided in Article 68ga-11 to allocate money from the 

unencumbered Contingent Fund for the construction of such 

road. 

Also, you inquire as to whether the Commissioners' Court may purchase certain lots for the purpose of 

storing road and bridge equipment thereon a.nd pay for the 

same out of the Contingent Fund within the Road and Bridge 

Fund. The Attorneys General of Texas have consistently 

held that purchases of this kind may only be paid ggrpt 

of the Permanent Improvement Fund of the county. 

fore, it is our opinion that the lots in question may not 

be purchased and paid for out of the Contingent Fund of 

the Road and Bridge Fund. 

We are enclosing copies of Opinions Ros. o-3286 

and O-7423 rendered by a prior administration, which adequately answer your second question. 

SUMMARY 

Any unencumbered portion of the Contingent Fund of the Road snd Bridge Fund of 

Brazoria County may be allocated by the 

Commissioners' Court for the purpose of 

constructing road projects not specifically mentioned in the 1948 budget by amendment of the bu 

689a-11, v. C. 2. 

et as provided In Article 

The Contingent Fund of the Road and 

Bridge Fund may not be used by the comtnissioners' Court for the purpose of purchasing lots for storing road and bridge equipment; said purchase may only be made out of 

the Permanent Improvement Fund of the COWLty, which may be provided by amendment of 

the budget If there is available money In 

such fund. 

Yours very truly, 

WTW:JR:wb:mw