ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

June 9,2003 

The Honorable Bruce Isaacks 

Denton County Criminal District Attorney 

1450 East McKinney, Suite 3 100 

P.O. Box 2850 

Denton, Texas 76202 

Opinion No. GA-008 1 

Re: Budget amendment process in Denton 

County (RQ-0013-GA) 

Dear Mr. Isaacks: 

You present two related questions about the process of amending the Denton County budget.’ 

First, you ask whether it is necessary, in amending an original county budget to create “a new 

salaried position that does not result in a new line item,” for the commissioners court to act under 

the “emergency expenditure” provision of section 111.070(b) of the Local Government Code, which 

you say governs Denton County.* Second, you ask whether, having created a position in the sheriffs 

department and identified the funding for that position, the Denton County commissioners court has 

a ministerial duty to fund the position and approve the appointment. 

As we understand the situation giving rise to your questions, in May 2002, upon the request 

of the Denton County sheriff, the commissioners court approved the creation of a homeland security 

coordinator position in the sheriffs office. At this time, the commissioners court determined that 

funding for the position would come from a budget line dedicated to unappropriated contingencies. 

In June 2002, the sheriff submitted a proposed order to the commissioners court for approval of his 

appointment of a candidate to the position. The commissioners court, however, declined to act upon 

the proposed order. In part, it appears the commissioners court declined because of a concern that 

the prior budget amendment had been inconsistent with the requirements of section 111.070 of the 

Local Government Code. 

Section 111.070 reads: 

(a) The commissioners court may spend county funds only in strict 

compliance with the budget, except as provided by this section. 

‘Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable Greg Abbott, 

Texas Attorney General (Jan. 17, 2003) (on file with Opinion Committee) [hereinafter Request Letter]. 

*Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable John Comyn, 

Texas Attorney General, at 1 (June 26,2002) (on file with Opinion Committee) (attached to Request Letter) [hereinafter 

Letter of June 26,2002-j. 
The Honorable Bruce Isaacks - Page 2 (GA-008 1) 

(b) The commissioners court may authorize an emergency 

expenditure as an amendment to the original budget only in a case of 

grave public necessity to meet an unusual and unforeseen condition 

that could not have been included in the original budget through the 

use of reasonably diligent thought and attention. If the court amends 

the original budget to meet an emergency, the court shall file a copy 

of its order amending the budget with the county clerk and the clerk 

shall attach the copy to the original budget. 

(c) The commissioners court by order may amend the budget to 

transfer an amount budgeted for one item to another budgeted item 

without authorizing an emergency expenditure. 

TEX. Lot. GOV’T CODE ANN. 4 111.070 (Vernon 1999) (emphasis added). 

By its terms, subsection (c) permits the reallocation of budgeted funds from one item to 

another without the requirements of the emergency expenditure provisions of subsection (b). As the 

El Paso court of appeals noted in Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.-El Paso 1993, 

no writ), a commissioners court has “general authority to effect the transfer of surplus funds” from 

one account to another. Hooten, 863 S.W.2d at 529. When a commissioners court simply transfers 

these amounts, under the language of subsection (c), it is not required to find a grave public necessity 

that was reasonably unforeseeable in the original budget process. 

As we understand it, particular salaries such as that of the homeland security coordinator are 

not line items in Denton County’s budget, but are rather “slots” within a line item. Letter of June 

26,2002, supra note 2, at 2. Further, when the commissioners court created the position in question, 

it ordered “that the funding was to come from the Unappropriated Contingency line item, but did not 

specify an amount for said funding.” Id. Such an amendment, given that it contemplated only a 

transfer of budgeted funds, falls within section 111.070(c). 

The appointment of a new employee by a county officer, such as a sheriff, is governed by 

subchapter A of chapter 15 1 of the Local Government Code. Section 15 1 .OOl commands an officer 

“who requires the services of deputies, assistants, or clerks” to apply to the commissioners court for 

such appointment in a sworn application detailing the number of employees required, the titles of 

their proposed positions, and the proposed salaries. TEX. Lot. GOV’T CODE ANN. Ej 151 .OOl 

(Vernon 1999). Such an appointment is then within the authority of the commissioners court, which 

“shall determine the number of employees that may be appointed and shall authorize their 

appointment .” Id. 8 15 1.002. After the commissioners court has issued such an order, “the officer 

applying for the employees may appoint them.” Id. 5 15 1.003. At that point, neither the 

commissioners court nor any member thereof may “attempt to influence the appointment of any 

person.” Id. 5 151.004. 

The courts and this office have frequently had occasion to analyze the relative authority of 

commissioners courts and sheriffs as independent constitutional officers with respect to the 
The Honorable Bruce Isaacks - Page 3 (GA-008 1) 

budgeting for and staffing of the sheriffs office. See Garcia v. Reeves County, 32 F.3rd 200 (5th 

Cir. 1994); Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.-Austin 1997, writ denied); Comm ‘rs Ct. 

of Shelby County v. Ross, 809 S.W.2d 754 (Tex. App.-Tyler 1991, no writ); Renken v. Harris 

County, 808 S.W.2d 222 (Tex. App.-Houston [ 14th Dist.] 1991, no writ); see also Tex. Att’y Gen. 

Op. No. JC-0214 (2000). The general division of authority is clear: “The commissioners court 

performs a legislative function when it creates the budget for the county’s offices and departments. 

This budgetary power carries with it broad discretion in making budgetary decisions.” Hooten, 863 

S.W.2d at 528. On the other hand, Texas sheriffs have “virtually unbridled authority in choosing 

their personnel, restricted only by certain basic constitutional considerations. . . . The commissioners 

court may limit the number of deputies authorized, but it has no power over naming the individuals 

to be appointed.” Comm ‘rs Ct. of Shelby County, 809 S.W.2d at 756. As this office summarized 

the matter in Attorney General Opinion JC-02 14, “the principal power of the commissioners court 

with respect to other county officers like the sheriff is the power of the purse strings.” Tex. Att’y 

Gen. Op. No. JC-0214 (2000) at 2. 

A commissioners court has the authority to determine, in any budget year, the resources to 

be distributed to the sheriff. It may, accordingly, take a different view than does the sheriff about 

the necessity for a particular staff position. In this case, had the commissioners court disagreed with 

the sheriff at the time of the requested authorization for the homeland security coordinator position, 

the sheriff would have had little recourse, given that such a decision could be challenged only for 

abuse of discretion. “The district court’s authority extends only to enjoin illegal expenditures and 

to situations where the commissioners abuse their discretion. It has no authority to substitute its own 

judgment for that of these elected officials as to the particular expenditures that should be made.” 

Weber v. City of Sachse, 591 S.W.2d 563,566 (Tex. App.-Dallas 1979, writ dism’d). Similarly, in 

another budget year, the commissioners court might revisit the issue of the position’s necessity. But 

having authorized the appointment, their control over the appointment for the budget year in question 

is at an end. Pursuant to section 15 1.003 of the Local Government Code, the power of appointment 

thereupon belongs entirely to the sheriff. Any further interference with that power of appointment 

would invade that “sphere of authority, which is delegated to [the sheriffJ by the Constitution and 

laws, within which another officer may not interfere or usurp.” Renken, 808 S.W.2d at 226; accord 

Abbott, 946 S.W.2d at 517; Tex. Att’y Gen. Op. No. JC-0214 (2000) at 3, 5. 
The Honorable Bruce Isaacks - Page 4 (GA-008 1) 

SUMMARY 

A commissioners court that amends its budget in midyear to 

authorize a new position in the sheriffs office by transferring surplus 

funds from one budget item to another need not authorize an 

emergency expenditure, but may proceed under the terms of section 

111.070(c) of the Local Government Code. Having authorized such 

an appointment pursuant to sections 15 1 .OOl and 15 1.002 of the 

Local Government Code, a commissioners court has ceded authority 

over that position to the appointing officer for the remainder of the 

budget year in question. 

Very truly yours, 

Attom@neral of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

James E. Tourtelott 

Assistant Attorney General, Opinion Committee