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~optionofthe amendment, and related questions ?

We acknowledge receipt ofyour request for the opinion of this department onthe questions stated therein, and quote from your letter as follows:

“The County Auditor of Limestone County has requested an opinion onthe following matter and Ihereby ask **your** advice on same:

“Limestone County is divided into four road precincts and the motor registration and advalorem tax money was equally divided between the four precinct funds for the year 1942. The anticipated receipts for this year onthis fund is estimated at $gO.- 000.00 and under order ofthe Commissioners Court apportioning the money equally, each precinct was allotted an estimated $20,000.00 for its Road and Bridge Fund.

“Precinct No. 1owes $76.277.56 in outstanding scrip against its Road and Bridge Fund. Precinct No. 2owes $123,362.71; Precinct 3owes $97,749.30 and Precinct No. 4 operates ona cash basis.

“The budget ofthe Commissioners Court for the year 1942 allotted $20.000.00 to each precinct fund towhich is added the gasoline tax refund money.

“In order to simplify the matter and show the actual condition ofthese funds Iam appending hereto

‘Exhibit A’ which contains a clear statement ofthe funds

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

“You will note from an examination ofthis exhibit that Precinct No. 1had 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 onthis 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 ifyou count estimated interest due.

“In past years the persons who have held the position of County Auditor have not kept a record ofthe 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 ofinterest due and he must, ofnec’essity, estimate it.

“The Auditor estimates the amount ofinterest due on Precinct No. 2at $6,000.00. He has paid $2,524.- 24 interest already and this leaves abalance of $3.475..76. Counting this estimated interest due, Precinct No. 2’s Road and Bridge Fund has spent $1,729.43 inexcess of thebudget.

“For Precinct No. 3there is estimated interest due of $6,000.00 ofwhich 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 finexcess of,the budget.

‘If you do not include the estimated interest due then Precinct No. 1has expended $1,238.47 in excess of the budget and ofthe estimated receipts for th,eyear 1942.

“Prior-tc~incu+-rirrg any ofthese expenditures in
excess ofthe estimated receipts the County Auditor warned the Commissioners ofPrecincts 1. 2and 3that any debts they incurred would be in excess ofthe budget and therefore illegal. Nevertheless the Commissioners incurred the obligations. Although there have been nounprecedented rains and storms than usually occur each year, the court declared an emergency onthis basis. Gfcourse this presents a difficult situation because every year we do have rains that wash outbridges and damage roads.

“The Commissioners Court, upon the refusal of the County Auditor to pay offthe 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 ofthis year and that itwas a case ofgrave public necessity to meet unusual and unforeseen conditions which could not, by reasonable diligent thought and attention, have been included inthe original budget for 1942, inthat by reason ofan act ofGod, there was much rain and overflfSws, and the roads andbridges were damaged to an extent that itwas necessary for Commissioners Precinct #l, to exceed the budget inthe sum of $3,900.00; Commissioners Precinct No. 2to exceed thebudget in the
sum of $l,SOO.OO; and Commissioners Precinct No. 3, to exceed the budget inthe sum of $4,606.00; andby reason ofsaid emergency expenditures to meet unusual and unforeseen conditions which could not by reasonable diligent thought and attention have been included inthe original budget: On motion made by Herman Adams and seconded by Wess Popejoy, all members ofthe court voting infavor ofsaid 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 inthe 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 ofthe 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 oftheir anticipated receipts for the year 1942?

“(4) Is the order ofthe 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, thebudget,,
as approved by the Court shall be filed with the Clerk ofthe County Court, and taxes levied only inaccordance therewith, and no expenditure ofthe funds ofthe county shall thereafter be made except in strict compliance with the budget as adopted by the Court. Except that emergency expenditures. in
case ofgrave 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 inthis Act shall be construed as precluding the Legislature from making changes inthe budget for State purposes or prevent the County Commissioners’ Court from making changes in the budget for county purposes or prevent the governing body ofany 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 inthe budgets for school purposes: and the duties required byvirtue ofthis Act ofState, 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 ofa county is without authority to make any expenditure offunds of the county except infixed compliance with the budget, except emergency expenditures in case ofgrave public necessity, as outlined by Section 11 ofArticle 6gqa. supra. This department has also repeatedly ruled that Section 20, ofArticle 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 ofthe 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 ofthe county, showing all outstanding obligations ofthe county, the cash on hand to the credit ofeach and every fund ofthe 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 oftaxwhich will be required.”

As we understand your first question, you desire to have our opinion onthe following question: Can the county budget now be legally amended to include obligations incurred prior to the adoption ofsaid amendment? Inanswer 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. Inother words, the commissioners’ court had no legal authority to incur any obligations or make any expenditures ofcounty funds except infixed compliance with the county budget, except emergency expenditures in case ofgrave public necessity, as outlined by Section 11 ofArticle 689a, supra. Said provision (Sec. 11, Art. 689~s)does not authorize the expenditure ofcounty funds or the incurring ofobligations which are tobe paid out ofcurrent 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 onscript issued by the county for the various commissioners’ precincts. Itis tobe understood thatwe are not passing upon the question as towhether or not the county can legally pay interest on such script inthis 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 tobe made under the budget, provided, claims for such interest are duly registered as required and authorized byArticle 1626 and 1627, Vernon’s Annotated Civil Statutes.

Inconnection with the foregoing we direct your attention to the case ofWilkinson 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 ofthe funds in the county treasurer to the payment ofall warrants legallg drawn against the several classes offunds inthe order oftheir registration. And the order ofthe 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 ofarticle 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 inthe order oftheir registration.

We now consider your third question. This is a general question and therefore, our answer must be general. The term “debt’as used inthe 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 ofthe agreement, within the lawful and reasonable contemplation ofthe parties, tobe satisfied out ofthe current revenues for the year, or out ofsome fund then within the immediate control ofthe commissioners’ court. Debts for the ordinary running expense ofthe county, payable within ayear out ofthe incoming
revenues ofthe year, andwith other indebtedness not clearly in excess of the yearly income for general purposes are notwithin the purview ofthe constitutional provision. and may be lawfully created without the making ofspecial provision for their payment.

If, at the time when the contract is made, it is contemplated that any part ofthe 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 itappears that the parties intended that payment should be made from current funds, and that, inthe reasonable contemplation ofthe parties, there is sufficient money within the immediate control ofthe county to discharge the indebtedness or that there was a reasonable expectation ofcollecting the money out oftaxes legitimately levied for such purposes, although payment was not made from the current funds available. Onthe other hand, where the contract creating the debt contemplates that payment shall be made out offunds offuture years, the contract will not be construed as creating a debt upon the current funds payable infuture years, even though a sufficient fundwas onhand at the date when such contract was made. (The Austin Brothers vs. Montague County, 291 S.W~. 628, reversed on other points 10S.W. (2nd) 718; Texas Jurisprudence, Vol. 11. Page 671. authorities cited)

Itwill be noted from the foregoing that the commis.sioners’ court can incur obligations in excess oftheir anticipated receipts where
a debt has been created and provisions for payment ofthe same are made in compliance with the constitutional pr,ovision requiring that special provision be made for Raying the obligation. However, obligations cannot beHonorable 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 ofcurrent funds.

With reference toyour 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 inthe amendment to the budget
were emergency expenditures, andwere caused and necessitated by grave public necessity to meet unusual and unforeseen conditions which could not, by reasonable diligence, and attention have been included inthe original budget. However, under the facts presented, the obligations inquestion were incurred prior toany amendment of the county budget, and as above stated inanswer toyour 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 ofthe commissioners’ court,
as quoted above, amending the county budget is invalid.

Inconnection with the foregoing, wewant to point out that the discretion ofthe commissioners’ court is not absolute authority to expend county funds in the case ofan emergency, and is final, only where the question is debatable orwhere the existence ofan 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 ofthis department contain discussions ofthe 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 afact question tobe determined primarily by the commissioners’ court.

AW:ff/cm Enc 1. We enclose copies ofthese 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