Honorable L. L. Geren 

County Attorney 

Limestone County 

Groesbeck, Texas 

Dear Sir: Opinion No. O-4830 

Re: Can the county budget now be 

legally amended to include obligations incurred prior to the 

ad~option of the amendment, and 

related questions ? 

We acknowledge receipt of your request for the opinion of 

this department on the questions stated therein, and quote from your letter as follows: 

“The County Auditor of Limestone County has 

requested an opinion on the following matter and I hereby ask your advice on same: 

“Limestone County is divided into four road 

precincts and the motor registration and ad valorem 

tax money was equally divided between the four precinct funds for the year 1942. The anticipated receipts for this year on this fund is estimated at $gO.- 

000.00 and under order of the Commissioners Court 

apportioning the money equally, each precinct was allotted an estimated $20,000.00 for its Road and Bridge 

Fund. 

“Precinct No. 1 owes $76.277.56 in outstanding scrip against its Road and Bridge Fund. Precinct 

No. 2 owes $123,362.71; Precinct 3 owes $97,749.30 

and Precinct No. 4 operates on a cash basis. 

“The budget of the Commissioners Court for 

the year 1942 allotted $20.000.00 to each precinct fund 

to which is added the gasoline tax refund money. 

“In order to simplify the matter and show the 

actual condition of these funds I am appending hereto 

‘Exhibit A’ which contains a clear statement of the funds 

‘rn question. 
Honorable L. L. Geren, page 2 (O-4830) 

“You will note from an examination of this exhibit that Precinct No. 1 had total estimated budget receipts for 1942 of $20.252.79. issued scrip for $15,163.- 

86, has interest this year estimated at $4,780.02, has 

paid $1.924.74 in interest and has interest due estimated at $2.865.26. The Commissioners Court has approved 

bills on this precinct for $3.956.65 and the County Auditor has refused to issue scrip for this and the other precincts unless you rule that he can legally do so. This 

fund is over the budget $4.093.73 if you count estimated 

interest due. 

“In past years the persons who have held the position of County Auditor have not kept a record of the 

amount of scrip issued that bore interest, nor has the 

County Tr~easurer, hence it is impossible for the present Auditor to set out accurately the amount of interest 

due and he must, of nec’essity, estimate it. 

“The Auditor estimates the amount of interest 

due on Precinct No. 2 at $6,000.00. He has paid $2,524.- 

24 interest already and this leaves a balance of $3.475..76. 

Counting this estimated interest due, Precinct No. 2’s 

Road and Bridge Fund has spent $1,729.43 in excess of 

the budget. 

“For Precinct No. 3 there is estimated interest 

due of $6,000.00 of which he has paid $1,047.60, leaving 

an estimated balance due of $4.952.40. Counting the estimated interest due Precinct No. 3’s Road and Bridge 

Fund has spent $3,857.33 fin excess of, the budget. 

‘If you do not include the estimated interest due 

then Precinct No. 1 has expended $1,238.47 in excess of 

the budget and of the estimated receipts for th,e year 1942. 

“Prior-tc~incu+-rirrg any of these expenditures in 

excess of the estimated receipts the County Auditor warned 

the Commissioners of Precincts 1. 2 and 3 that any debts 

they incurred would be in excess of the budget and therefore illegal. Nevertheless the Commissioners incurred 

the obligations. Although there have been no unprecedented 

rains and storms than usually occur each year, the court 

declared an emergency on this basis. Gf course this presents a difficult situation because every year we do have 

rains that wash out bridges and damage roads. 

“The Commissioners Court, upon the refusal of 

the County Auditor to pay off the obligations amended the 

budget with the following order: 
Honorable L. L. Geren, page 3 (o-4830) 

II ‘Whereas, it is necessary to amend the budget 

for 194L insofar as same relates to Commissioners Precincts and/or Road & Bridge Fund #l, Road & Bridge 

Fund #2, Road & Bridge Fund #3, for the reason that an 

emergency exists and did exist during the first eight 

months of this year and that it was a case of grave public necessity to meet unusual and unforeseen conditions 

which could not, by reasonable diligent thought and attention, have been included in the original budget for 

1942, in that by reason of an act of God, there was much 

rain and overflfSws, and the roads and bridges were damaged to an extent that it was necessary for Commissioners 

Precinct #l, to exceed the budget in the sum of $3,900.00; 

Commissioners Precinct No. 2 to exceed the budget in the 

sum of $l,SOO.OO; and Commissioners Precinct No. 3, to 

exceed the budget in the sum of $4,606.00; and by reason 

of said emergency expenditures to meet unusual and unforeseen conditions which could not by reasonable diligent thought and attention have been included in the original budget: On motion made by Herman Adams and 

seconded by Wess Popejoy, all members of the court 

voting in favor of said motion, it is ordered that the Budget for 1942 be amended so that Road & Bridge Fund #l , 

will be increased $3,900.00; Road & Bridge Fund #2 will 

be increased $1,500.00; and Road & Bridge Fund #3. will 

be increased $4,606.00.’ 

“From this order you can readily see that the budget is being amended in the approximate sum of $lO,OOO.OO 

to care for past obligations. 

“We wish to know the following: 

“(1) Can the bu&get~now be amended to make legal, 

obligations incurred prior to the adoption of the amended 

budget? 

“(2) Must the County Auditor include the estimated 

interest due in computing the expenditures under the budget? 

“(3) Can the Commissioners spend money in excess of their anticipated receipts for the year 1942? 

“(4) Is the order of the Commissioners Court 

amending the budget valid ? 
‘Honorable L. L. Geren. page 4 (o-4830) 

Article 689a-9, Vernon’s Annotated Civil Statutes, provides 

for the preparation of the County budget. Article 68qa-11, Vernon’s Annotated Civil Statutes provides in part: 

u 

. . . When the budget has been finally approved by 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 compliance with the budget as adopted by 

the Court. Except that emergency expenditures. in 

case 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, may from time to time be authorized by the Court as amendments to the original budget. . . . ” 

vides: 

Article 689a-20, Vernon’s Annotated Civil Statutes, pro- 

“Nothing contained in this Act shall be construed as precluding the Legislature from making 

changes in the budget for State purposes or prevent the County Commissioners’ Court from making changes in the budget for county purposes or 

prevent the governing body of any incorporated 

city or town from making changes in the budget 

for city purposes, or prevent the trustees or other 

school governing body from making changes in the 

budgets for school purposes: and the duties required by virtue of this Act of State, County, City 

and School Officers or Representatives shall be perford for the compensation now provided by law to 

be paid said officers respectively.” 

This department has repeatedly ruled that the commissioners’ 

court of a county is without authority to make any expenditure of funds of 

the county except in fixed compliance with the budget, except emergency 

expenditures in case of grave public necessity, as outlined by Section 11 

of Article 6gqa. supra. This department has also repeatedly ruled that 

Section 20, of Article 6Sqa, supra, does not authorize the commissioners’ 

court to increase the budget after its adoption and that to hold otherwise 

would destroy the very purpose of the act. 

in part: 

Article 689a-9. Vernon’s Annotated Civil Statutes, provides, 
Honorable L. L. Geren, page 5 (o-4830) 

II 

. . . The budget shall also contain a complete 

financial statement of the county, showing all outstanding obligations of the county, the cash on hand to the 

credit of each and every fund of the county government, 

the funds received from all sources during the previous 

year, the funds available from all sources during the ensuing year, the estimated revenues available to cover 

the proposed budget and the estimated rate of tax which 

will be required.” 

As we understand your first question, you desire to have our 

opinion on the following question: Can the county budget now be legally 

amended to include obligations incurred prior to the adoption of said amendment? In answer to this question, it is our opinion that the county budget 

cannot now be legally amended to include obligations incurred prior to 

the adoption of said amendment. In other words, the commissioners’ 

court had no legal authority to incur any obligations or make any expenditures of county funds except in fixed compliance with the county budget, except emergency expenditures in case of grave public necessity, as 

outlined by Section 11 of Article 689a, supra. Said provision (Sec. 11, 

Art. 689~s) does not authorize the expenditure of county funds or the incurring of obligations which are to be paid out of current revenues without 

first amending the county budget in compliance with the above mentioned 

statute. 

As we understand your second question, you have reference 

to interest on obligations owed by the county as interest by the various 

commissioners’ precincts. Under the facts stated, it is apparent that the 

interest due is interest on script issued by the county for the various commissioners’ precincts. It is to be understood that we are not passing upon 

the question as to whether or not the county can legally pay interest on 

such script in this opinion. However, assuming that such interest can 

legally be paid it is our opinion that the county auditor must include the 

interest paid in computing the expenditures under the budget. With reference to the interest due and unpaid, the county auditor must include 

this in computing the legal expenditures to be made under the budget, 

provided, claims for such interest are duly registered as required and 

authorized by Article 1626 and 1627, Vernon’s Annotated Civil Statutes. 

In connection with the foregoing we direct your attention to 

the case of Wilkinson vs. Franklin County, 94 S.W. (2nd) 1190, wherein it 

is stated: 

“Article 1625, R.S., plainly denotes the order in 

which warrants drawn against the county treasury are to 

be paid, and amounts to an appropriation of the funds in 

the county treasurer to the payment of all warrants legallg drawn against the several classes of funds in the order 

of their registration. And the order of the commissioners’ 

court of Franklin county of July 13, 1934, requiring the 
. _ 

Honorable L. L. Geren. page 6 (O-4830) 

county treasury first to pay current warrants drawn 

against the county general fund ahead of senior registration warrants drawn against said fund is violative 

of article 1625, R.S.. and is therefore void.” (Also 

see the case of Clarke & Courts v. Panola County, 

161 S.W. (2d) 148) 

What was said above with reference to the registration of 

claims for interest due, is equally applicable to all other claims against 

said fund or funds and such claims must be paid in the order of their registration. 

We now consider your third question. This is a general 

question and therefore, our answer must be general. The term “debt’as 

used in the constitutional provision requiring that special provision be 

made for paying the obligation, has a technical meaning. The term has 

been defined as comprehending any pecuniary obligation imposed by contract, except such as is at the date of the agreement, within the lawful 

and reasonable contemplation of the parties, to be satisfied out of the 

current revenues for the year, or out of some fund then within the immediate control of the commissioners’ court. Debts for the ordinary 

running expense of the county, payable within a year out of the incoming 

revenues of the year, and with other indebtedness not clearly in excess of 

the yearly income for general purposes are not within the purview of the 

constitutional provision. and may be lawfully created without the making 

of special provision for their payment. 

If, at the time when the contract is made, it is contemplated 

that any part of the pur,chase price will be paid from taxes levied and collected for future years, the contract falls within the prohibitive class. 

But the debt will be held valid without special provision for payment where 

it appears that the parties intended that payment should be made from current funds, and that, in the reasonable contemplation of the parties, there 

is sufficient money within the immediate control of the county to discharge 

the indebtedness or that there was a reasonable expectation of collecting 

the money out of taxes legitimately levied for such purposes, although 

payment was not made from the current funds available. On the other 

hand, where the contract creating the debt contemplates that payment 

shall be made out of funds of future years, the contract will not be construed as creating a debt upon the current funds payable in future years, 

even though a sufficient fund was on hand at the date when such contract 

was made. (The Austin Brothers vs. Montague County, 291 S.W~. 628, reversed on other points 10 S.W. (2nd) 718; Texas Jurisprudence, Vol. 11. 

Page 671. authorities cited) 

It will be noted from the foregoing that the commis.sioners’ 

court can incur obligations in excess of their anticipated receipts where 

a debt has been created and provisions for payment of the same are made 

in compliance with the constitutional pr,ovision requiring that special provision be made for Raying the obligation. However, obligations cannot be 
Honorable L. L. Geren, page 7 (O-4830) 

made where it appears that the parties intended that payment should be 

made from current funds and said obligation or Obligations exceed the 

anticipated receipts of current funds. 

With reference to your fourth question, generally speaking, 

after the county budget has been finally approved by the county commissioners’ court, said court would not be authorized to amend the original 

budget, unless the expenditures set out in the amendment to the budget 

were emergency expenditures, and were caused and necessitated by grave 

public necessity to meet unusual and unforeseen conditions which could 

not, by reasonable diligence, and attention have been included in the original budget. However, under the facts presented, the obligations in question were incurred prior to any amendment of the county budget, and as 

above stated in answer to your first question, it is our opinion that the 

county budget cannot now be legally amended to include such obligations. 

Therefore it is our opinion that the order of the commissioners’ court, 

as quoted above, amending the county budget is invalid. 

In connection with the foregoing, we want to point out that the 

discretion of the commissioners’ court is not absolute authority to expend 

county funds in the case of an emergency, and is final, only where the question is debatable or where the existence of an emergency is unquestionable. 

However, said court has no authority to determine that an emergency exists, 

and expend county funds therefore, where the facts clearly show the contrary. Said court has no legal authority to declare an emergency and evade 

the law, where in fact, no emergency exists. 

Opinions Nos. O-1022 and O-1053 of this department contain 

discussions of the budget law. Opinion No. O-1053 defines the terms 

“grave” and “public necessity”.. Opinions Nos. O-1053 and O-1022 hold that 

the question of “grave public necessity” is a fact question to be determined 

primarily by the commissioners’ court. 

AW :ff/cm 

Enc 1. 

We enclose copies of these opinions for your c’onvenience. 

Trusting that the foregoing fully answers your inquiry, we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ Ardell Williams 

Ardell Williams 

Assistant 

APPROVED OCT 29,1942 

/s/ Gerald C. Mann 

ATTORNEYGENERALOF TEXAS 

APPROVED 

Opinion 

Committee 

By BWB 

ChaIrman