September ~2.~ 1948

Hon. F. A. Taylor OpinionRo. V-694 CountyAuditor 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 machinerynot included in the original budget.

Dear Sir:

We refer to letter in which you submit the following:

"First, under .theOptionalRoad Law of 1947, we are operatingunder a strict budget system. We have a budget’ for road maintenance in the amount of $271,300.00to 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 8495,712.48. This amount for the constructlon

budget is composed of the efitimated cost of the constructionof the roads enumerated in the budget, and contingentfund of $31.274.98. The questionunder consideration now came up when the Coinmissioners Court Instructedthe Engineer to construct a road that was noton constructionbudget, and to for it out of the contingentfund. (Emphaadded throughout this opinion)

”

. . . “ThereforeI will ask you if the Commissioners Court has the authority to purchase the lots referred to In the lnclosed letter, and to order the constructionof 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 concerningthe'lots is to a letter written by Hon. Sam Lee, CountyAttorney, to Ron. E. W. Oarnett, County Engineer of Rrasoria County, from which we quote:

"With reference to the lots to be purchasedby the court for the purpose of storing road equipmentthereon, from the facts, I believe an emergencyexists. I understand that the present lots are insufficientto house the equipmentand unless these adjoining lots are purchased immedi$telythey will be sold to private interests.

An examinationof 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 specificheading of Precinct Rxpendltures (all precincts combined)$271,300,00is "earmarked" for maintenancecosts; $4$4,437.50 is 'earmarked' for '"48

ConstructionProjects and the $31,274.98 Is "earmarked"for contingencies. $464,437.50 is to be used for According to,thebudget 48 road projectswithout naming, identifylng,ordescribingany of said projects \ within the budget. But from the County Judge, County Attorney, County Auditor ed that even though the and County Engineerwe learn- &'road constructionprojects
were not named within the 1948 budget, the Commissioners' Court had specificallydesignatedthe 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 contingencyis just as much an appropriationfor road and bridge purposes as the appropriationsfor maintenanceand cons;ructioncosts6 so long as the money Is "earmarked"for contingencies It
can only be used for items which will necessarilyarise during the budget year but which cannot appropriatelybe classifiedunder any of the specificpurposes set out elsewhere in the budget. First Rational Bank of Norman
v. City of Norman, 75 P.(2d) 1109. A contingentfund is set up for minor disbursementsincidentalto the principal classes of expenditures,enumerated in the budget, wh3ch would be useless to specifymore accurately. Dunwoody v. United States, 22 Court of Claims Reports, 269.

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

## 491

case, it is.

our’opinionthat the cost of constructinga road not specified in the originalbudget could not be pala for directly out of the contingentappropriation 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 considerationthe authority of the bornmissioners I Court to purchase a certain building which was not provided for In the budget. The trial court granted an Injunctionprohibit1 the Commissioners’Court from buying the property. 3 he Court of Civil Appeals held that no sufficientorder had been made to authorize the purchasebut modified the lnjunction so as to permit the commissioners1Court to appropriatelyamend 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 compliedwith by appropriateaction In the future. The decree itself seems to be limited to the order of April 29, 1944, which,
as above pointed out, is insufficientin 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 Commissioners1Court from paying to Mrs. Jennie B. Bell any sum,of public monies under the order of April 29, 1944, standing clone, without prejudicehowever, 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 considerationthe authority of the Commissioners'Court to amend its countybudget which originallycontained,among numerous funds set up and appropriatedfor various coun-

## 492 Hon. F. A. Taylor, page 4 (V-694)

ty purposes,a fund of $16,000.00to cover the expense of holding elections in the county. Such fund was itemized as follows:
“Judgesand Cleliks Repairingbooths and $ 9,275000

ballot boxes 100.00~ Deliveringballot boxes 600.00 Rent chairs, tables & supplies &);.gE Hauling election equipment PrLnting, stationery,stamps 4,200:OO Advertising 25.00 School Judses and Clerks 20b0 00 $ 16,OOO.OO”

The Commissioners Court passed an order amending its budget so as to provide for the rental~of three hundred votingmachineswith an option to purchase,and the order decreed that the originalbudget “be so amended that the 

## fund remaining unexpended ($15,824.84)of the $16,- 000.00 (itemizedabove) budgeted to elections In the general fund, be reallocatedand expendedas follows:
Freight on * * * 210 voting machines delivered to San Antonio Full coverage insurance* * *$ 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 MiscelIaneousexpense

._, ..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 machinesafter amendment of the budget as pointed out above made the following observation:

“We cannot agree with the contentionof plaintiffsthat the commissioners’court was without authority to amend its budget.

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

the court to adopt an annual budget for carry-, ing on the county'sbusiness that the legis-, lature recognized some latitudemust be allowed, within the restrictions imposedwith respect to the mode of operation,to make the budg- .,get plan workable; and that a budget as originallymade and adopted,because of expendltures necessitatedby %.nusualand unfopeseen conditionswhich could not, by reasonablydlligent thought and attention,have been lncluded in the originalbudget' might 'fromtime to time' be amended to meet such 'emergencyexpenditures,in case of grave public necessity.’ Arts. 68ga-11, 68ga-20, supra. II

. . .
"It can hardly be said conclusivelythat the court was.lacking in 'reasonably qiligent thought and attention' in not adoptingvoting machines for election purposesat the time it made the originalbudget, or that it was an abuse of their discretionto adopt the'm when it did so. It Is fair to assume that the circumstances

making it advisableand to the county'sbest interest to adopt votingmachines came about after the originalbudget 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 accomplishthe purposes intended,' so long as it observed the constitutionaland statutorylimitations imposed upon it. Dodson v. &r&all, Tex. Civ. App., 118 S.w.2d 621~, 623. Certainly it would be unfair to assumeagalnstthe 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 appropriationmade by the amendment was within an object (electiontxpense) of the budget as originallyadopted.

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 determinesthat a necessityexists for the constructionof a road not provided for in the budget, said court may amend the budget
as provided in Article 68ga-11 to allocatemoney from the unencumberedContingentFund for the constructionof such road.
Also, you inquire as to whether the Commissioners' Court may purchase certain lots for the purpose of storingroad and bridge equipment thereona.nd pay for the
same out of the ContingentFund 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 ImprovementFund of the county. fore, it is our opinion that the lots in questionmay not be purchasedand paid for out of the ContingentFund of the Road and Bridge Fund.

We are enclosing copies of OpinionsRos. o-3286 and O-7423 renderedby a prior administration, which adequatelyanswer your second question.

SUMMARY

Any unencumberedportion of the Contingent Fund of the Road snd Bridge Fund of Brazoria County may be allocatedby the Commissioners'Court for the purpose of constructingroad projectsnot specifically mentioned in the 1948 budget by amendment of the bu 689a-11, v. C.

2.et as provided In Article

The ContingentFund 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 ImprovementFund of the COWLty, which may be providedby amendment of the budget If there is availablemoney In such fund.
Yours very truly,

WTW:JR:wb:mw