### ATTORNEYGENERALOFTEXAS
GREG ABBOTT

February 24,2004

The Honorable Matt Bingham Opinion No. GA-01 54 Smith County Interim Criminal District Attorney 100North Broadway, 4th Floor Re: Whether a commissioners court may Tyler, Texas 75702 delegate its authority under Local Government Code section 111.070(c) to amend the county budget by transferring amounts between budgeted items (RQ-01 00-GA)

Dear Mr. Bingham:

Your predecessor in office asked whether acommissioners court may delegate its authority under Local Government Code section 111.070(c) to amend the county budget by transferring amounts between budgeted items. He was particularly interested in intradepartmental budget transfers. *

As background to the request, your predecessor informed us that Smith County prepares its budget under Local Government Code chapter 111, subchapter C. See Request Letter, supra note 1,at 1;see also TEX.Lot. GOV’TCODEANN. $5 111.061-,075 (Vernon 1999). As provided in that subchapter, abudget officer appointed by the commissioners court prepares the county budget. See Request Letter, supra note 1, at 1; see also TEX.LOC.GOV’T CODEANN. 5 111.062(a) (Vernon 1999) (“The commissioners court of the county may appoint acounty budget officer to prepare a county budget for the fiscal year.“). The Smith County Auditor and the budget officer “proposed a policy for Smith County inwhich the commissioners court authorized the [budget officer] to approve intra-departmental budget transfers such asoffice supplies, postage, etc.” Request Letter, supra note 1,at 1. The last Smith County budget included forty-one departmental budgets itemized to reflect specific spending items. See id. at l-2. “Each of these itemized spending lines are assigned an account number out ofwhich funds are withdrawn as approved expenditures occur.” Id. at2.
Under aproposed Smith County Commissioners Court order, the court “would delegate its authority to authorize transfers between any line item ofthe department except salaries.” Id. at 2. Section 111.070 ofthe Local Government Code generally requires that acommissioners court must spend county funds in strict compliance with the county budget, except in emergencies, but also

‘See Letter from Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General, at 1(Aug. 18,2003) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable Matt Bingham - Page 2 (GA-0154)

provides in subsection (c) that a “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 CODEANN. 8 111.070(c) (Vernon 1999). The Smith County Auditor believes that the commissioners court “may ‘by order’ delegate its [section 111.070(c)] budget transfer authority to another person including the budget officer.” Request Letter, supra note 1,at2. Your predecessor believed, however, that section 111.070(c) does not permit the delegation. See id. at2-3. The Smith County Commissioners Court initially consented to delegate authority to approve intradepartmental budget transfers to the budget officer but “has since rescinded such authority pending” our response to this opinion request. See id. at 1.
This question requires us to examine not only subchapter C’s provisions governing county budget amendments, but also county budgets’ contents and legal status. No statute directly imposes requirements for a finally adopted county budget’s contents. The contours of a finally adopted budget may be gleaned from section 111.063, which requires the budget officer to prepare an itemized proposed budget:
The budget officer shall itemize the budget to allow as clear
a comparison as practicable between expenditures included in the proposed budget and actual orestimated expenditures for the same or similar purposes that were made for the preceding fiscal year. The budget must show with reasonable accuracy each ofthe projects for which an appropriation isestablished inthe budget and the estimated amount ofmoney carried in the budget for each project.

TEX.LOC.GOV’T CODEANN. 9 111.063(a) (Vernon 1999). Subchapter Crequires that the budget officer’s proposed budget be made available to the public, see id. 5 111.066, and that the cornrnissioners court hold apublic hearing on it, see id. $5 111.067-.0675 (Vernon 1999 & Supp. 2004). At the conclusion ofthe public hearing, “the commissioners court shall take action on the proposed budget.” Id. 8 111.068(a) (Vernon 1999). Before doing so, the commissioners court may make any changes in the proposed budget “that it considers warranted by the facts and law and required by the interest ofthe taxpayers.” Id. 8 111.068(b).

This office has recognized that chapter 111 gives commissioners courts some latitude over how they draft their budgets. Significantly, section 111.063 does not specify precisely how detailed
aproposed budget must be. The proposed budget must be itemized “to allow asclear acomparison
as practicable between expenditures included in the proposed budget and actual or estimated expenditures for the same or similar purposes that were made for the preceding fiscal year.” Id. tj 111.063(a). In addition, the proposed budget must show “with reasonable accuracy each of the projects for which an appropriation is established

...and the estimated amount ofmoney carried in the budget for each project.” Id. Moreover, the commissioners court has broad authority to amend the proposed budget. See id. 8 111.068(b). As this office has observed with respect to these requirements, “[t]he practices of various counties with respect to the amount of detail in their budgets will, accordingly, vary. Some counties

. . .may choose to divide the budget into broad categories, others tobemore precise and minute intheir descriptions. How specifically the budget’sThe Honorable Matt Bingham - Page 3 (GA-01 54)

lines aredrawn isgenerally amatter forthe commissioners court to decide.” Tex. Att’y Gen. LO-97- 080, at 1; see also Tex. Att’y Gen. LO-98-067, at 5 (construing parallel provision in Local Government Code chapter 111, subchapter A “to provide general guidance as to the preparation of the budget, but not to set definite requirements for how specific line items must be”).

The conclusion that acounty budget may be drawn incategories, asaseries ofspecific items,
or as acombination ofthe two is also supported by section 111.091 ofthe Local Government Code, which requires the county auditor, once abudget is adopted, to “open an appropriation account for each main budgeted or special item in the budget.” TEX.Lot. GOV’T CODEANN. 8 111.091(a) (Vernon 1999); see also id. 8 111.075 (Vernon Supp. 2004) (“Notwithstanding any other provision of this subchapter, a county may establish in the budget areserve or contingency item. The item must be included in the itemized budget under Section 111.063(a) in the same manner as aproject for which an appropriation is established in the budget.“).
Section 111.070 provides that after the budget hasbeen adopted, “[tlhe commissioners court may spend county funds only in strict compliance with the budget,” id. 5 111.070(a) (Vernon 1999), with two exceptions, each ofwhich requires the commissioners court to amend the budget by order. First, the commissioners court may authorize an emergency expenditure “as an amendment to the original budget” but 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.” Id. 8 111.070(b). Ifacommissioners court so amends abudget, it must “file acopy of its order amending the budget with the county clerk and the clerk shall attach the copy to the original budget.” Id. Second, as noted in the opinion request, see Request Letter, supra note 1,at2, “[t]he 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 CODEANN.5 111.070(c) (Vernon 1999).
These requirements reflect the county budget’s status as acommissioners court order. See id. 4 111.068(a) (“At the conclusion ofthe public hearing, the commissioners court shall take action
on the proposed budget.“); Gano v. Palo Pinto County, 8 S.W. 634, 635 (Tex. 1888) (“The commissioners’ court is a court of record, and speaks through its minutes.“); Ha&s v. Smith, 74 S.W.3d 409, 412 n.5 (Tex. App.-Tyler 2001, pet. denied) (“Meeting minutes reflecting that the commissioners’ court voted on the issue athand constitutes avalid order.“). As a general matter, a commissioners court order may be amended only by another commissioners court order. See Mecom v. Ford, 252 S.W. 491, 497 (Tex. 1923) (“Commissioners’ courts in Texas are courts of record, and as such have control over their own records. They have inherent power to correct and amend such records and the same can be altered orchanged only by the order of such court itself.“); cj: City ofHutchins v.Prasifka, 450 S.W.2d 829, 832 (Tex. 1970) (“It takes alaw to repeal alaw. The act which destroys should be of equal dignity with that which establishes.“).

Your predecessor asked whether acommissioners court isauthorized to delegate its authority to amend a county budget under section lll.O7O(c)‘s exception for transfers between budgeted items. Acommissioners court may exercise only those powers that are expressly conferred on itby the constitution and statutes, together with such implied powers as are necessary to exercise theThe Honorable Matt Bingham - Page 4 (GA-0154)

powers expressly conferred. See TEX.CONST.art.V,fj18(b); City ofSanAntonio v. City 

### ofBoerne, 111 S.W.3d 22,28 (Tex. 2003); Canales v.Laughlin, 214 S.W.2d 451,453 (Tex. 1948). Where the legislature expressly grants acommissioners court power and prescribes how itis to be exercised, the prescribed method excludes all other methods and must be followed. See Canales, 214S.W.2d at457.

A commissioners court may not delegate its authority to amend the county budget by transferring amounts between budgeted items. By its plain terms, section 111.070(c) requires that the commissioners court itself act to amend the budget. Because the authority to delegate is not necessary to the exercise of the express authority to amend the budget, this authority may not be implied. Moreover, section 111.070(c) authorizes a commissioners court to amend the county budget and prescribes how that authority may be exercised - by a commissioners court order transferring aspecific amount ofmoney from one budget item to another. This expressly prescribed method excludes budget amendments pursuant to acommissioners court order generally authorizing transfers between budgeted items pursuant to adelegatee’s approval.

Your predecessor suggested that some Smith County officials contend that approving budget amendments involving transfers within departmental budgets may be delegated because this duty is “ministerial in nature.” Request Letter, supra note 1,at 3. Generally, “[wlhere the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion orjudgment, the act is ministerial; but where the act to be done involves the exercise ofdiscretion orjudgment, itisnot tobe deemed merely ministerial.” Rains v.Simpson, 50 Tex. 495,501 (1878); see also Anderson v. City ofSeven Points, 806 S.W.2d 791,793 (Tex. 1991) (“An act isministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion.“). Courts have held that a commissioners court may not delegate a discretionary, or nonministerial, duty without express statutory authority, see Guerra v.Rodriguez, 239 S.W.2d 915,920 (Tex. Civ. App.-San Antonio 1951, no writ) (“In the absence of statutory authority, the powers of a Commissioners’ Court involving the exercise ofjudgment and discretion cannot be delegated, and until delegated those powers reside with the court.“); see also Smith v. Flack, 728 S.W.2d 784, 790 (Tex. Crim. App. 1987) (“a commissioners court must have statutory authority to abdicate [discretionary duties] to some other legal entity or office”), which suggests that as ageneral rule acommissioners court may delegate merely ministerial duties, see Guerra, 239 S.W.2d at920 (“The power to hire workers and to buy and hire tools, and equipment arenot mere ministerial functions which may be delegated.“); Tex. Att’y Gen. Op. No. K-0264 (2000) at 4 (“in the absence of legislative assignment of the ministerial duties associated with purchasing of goods and services for the county, the commissioners court may assign those duties to appropriate county employees”). Here, however, it is irrelevant whether the commissioners court’s duty to approve an intradepartmental budget transfer isministerial ornonministerial, because section 111.070(c) requires the commissioners court itself to approve and order all authorized budget amendments, providing no room for adistinction between “ministerial” and “nonministerial” budget transfers.

Your predecessor also suggested that subchapter Cprovisions governing the budget officer’s duties might authorize the delegation. See Request Letter, supra note 1, at 4. Subchapter CThe Honorable Matt Bingham - Page 5 (GA-01 54)

authorizes the budget officer to “monitor the budget” and to “assist the commissioners court in the performance ofthe court’s duties relating to the efficiency and effectiveness of county operations” and provides for other personnel “to assist” the budget officer. See TEX.LOC.GOV’T CODEANN. 95 111.065, .071,,073 (Vernon 1999). None ofthese provisions authorizes the commissioners court to delegate its authority to amend the budget.

Your predecessor asked inparticular about transfers between items in adepartmental budget included within the general county budget. As we have noted, chapter 111 gives acommissioners court some latitude in deciding how detailed the county budget will be. See id. $9 111.063(a), .068(b), .091(a). Once acommissioners court has adopted acounty budget that provides for specific items, however, only the commissioners court may amend the budget to transfer amounts between such budgeted items. See id. 0 111.070(c). Thus, to the extent the county budget specifies items within a departmental budget, the commissioners court may not delegate its authority to approve amendments to the county budget by transferring amounts between such items.The Honorable Matt Bingham - Page 6 (GA-0154)



### SUMMARY

A commissioners court may not delegate its authority under Local Government Code section 111.070(c) to amend the county budget by transferring amounts between budgeted items. To the extent the county budget specifies items within a departmental budget, the commissioners court may not delegate its authority to approve amendments to the county budget by transferring amounts between such items. Very truly yours,

eneral ofTexas

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Comrnittee Mary R. Crouter Assistant Attorney General, Opinion Committee