ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

July 20,2005 

Ms. L. Marliessa Clark, C.P.A. 

Hamilton County Auditor 

Hamilton County Courthouse 

Hamilton, Texas 7653 1 

Opinion No. GA-0340 

Re: Procedures applicable to a county’s accounting 

for and spending excess contributions returned to a 

county pursuant to section 26.008 of the Government 

Code (RQ-03 11 -GA) 

Dear Ms. Clark: 

You inquire about the expenditure of funds returned to Hamilton County pursuant to 

Government Code section 26.008 and about your authority as county auditor to account for those 

funds.’ You disagree with the county attorney’s opinion on this subject.’ 

I. Lepal Backwound 

Section 26.008 applies to a county that sends certain court costs to the state comptroller, who 

deposits the money into the judicial fund, a separate fund in the state treasury. See TEX. GOV’T 

CODE ANN. 5 21.006 (Vernon 2004) (establishing judicial fund). The legislature appropriates the 

court costs from the judicial fund to supplement the salary of the county judge in participating 

counties. See General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IV, 2003 Tex. Gen. Laws 

5023,5570-72; see also TEX. GOV’T CODE ANN. $9 26.006 (Vernon 2004), 51.703 (Vernon 2005) 

(governing salary supplements for county judges); Tex. Att’y Gen. Op. No. JC-0305 (2000) at 2 

(similar program to supplement salaries of statutory county court judges). At the end of each state 

fiscal year, the comptroller returns excess contributions to the participating counties. See TEX. 

GOV’T CODE ANN. 0 26.008(a) (Vernon 2004). The amounts remitted to the county “shall be paid 

to the county’s general fund to be used only for court-related purposes for the support of the judiciary 

as provided by Section 2 1.006.” Id. 0 26.008(b). 

‘Letter from L. Marliessa Clark, C.P.A., Hamilton County Auditor, to Honorable Greg Abbott, Texas Attorney 

General (Jan. 2 1, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter 

Request Letter]. 

‘See Letter from Honorable Andy J. McMullen, Hamilton County Attorney, to Hamilton County Commissioners 

Court (Dec. 28,2004) (on file with Opinion Committee) [hereinafter McMullen Letter]. 
Ms. L. Marliessa Clark, C.P.A. - Page 2 (GA-0340) 

II. Factual Backmound 

In Hamilton County, the fiscal year runs from October 1 to September 30 of the next calendar 

year, and the excess contributions (“section 26.008 funds”) are returned to the county in September, 

after the county budget for the next year has been completed.3 Thus, when the commissioners court 

prepares the budget, it does not know the amount of excess contributions the county will receive. 

The county attorney’s letter states that all excess contributions paid to Hamilton County under 

section 26.008 ‘yshould be placed in a separate fund and spent in accordance with a special budget.” 

McMullen Letter, supra note 2, at 1. “At the end of each fiscal year, any balance remaining in this 

fund will be carried forward in the same fund.” Id. 

III. Ouestions 

We paraphrase your questions about the section 26.008 funds: 

1. Does Government Code section 26.008 implicitly require the 

county to create a separate fund to account for the excess 

contributions and to adopt a separate budget for them? 

2. Does section 26.008 allow these funds to be accumulated 

from year to year to allow for differences between the state 

fiscal year and the county fiscal year or for other reasons? 

3. Would the offset of day-to-day expenses to support the 

judiciary, such as fees for court-appointed attorneys, court 

reporters, juvenile detention, and wages and benefits for court 

employees, constitute court-related purposes? Does Local 

Government Code section 112.001 allow the county auditor 

to require that accounting? 

4. Is it the intent of section 26.008 to budget these funds only for 

extraordinary expenses of the judiciary? 

See Request Letter, supra note 1, at 2. 

IV. Must a Countv Create a Separate Fund and Adopt a Separate BudPet for Excess 

Contributions ? 

We first consider whether the excess contributions must be kept in a separate fund and 

allocated by a separate budget. Section 26.008 of the Government Code provides that the excess 

contributions “shall be paid to the county’s general fund to be used only for court-related purposes 

‘Telephone Conversation with L. Marliessa Clark, Hamilton County Auditor (Mar. 30,2005) [hereinafter Clark 

Telephone Conversation]. 
Ms. L. Marliessa Clark, C.P.A. - Page 3 (GA-0340) 

for the support of the judiciary as provided by Section 21.006.” TEX. GOV’T CODE ANN. $26.008 

(Vernon 2004). Section 21.006, which creates the judicial fund as a separate fund in the state 

treasury, provides that “[tlhe fund shall be used only for court-related purposes for the support of the 

judicial branch of the state.” Id. $21.006. Numerous statutes require court costs to be paid into the 

judicial fund. See, e.g., id. $5 5 1.005 (fees in civil cases); 5 1.702(d) (fees in civil cases in statutory 

county courts); 5 1.703(e) (fees in certain county courts); 5 1.704 (fees in statutory probate courts) 

(Vernon 2005). 

Section 26.008, in providing that the excess contributions shall be used “only for courtrelated purposes,” reflects the constitutional principle that fees charged to litigants may be used only 

for the support of the judiciary. See TEX. CONST. art. I, 3 13 (open courts provision); Tex. Att’y 

Gen. Op. No. JC-0158 (1999) at 3. A court fee that is used for general revenue purposes instead of 

court-related purposes is an arbitrary and unreasonable interference with the right of access to the 

courts protected by the “open courts” provision, article I, section 13 of the Texas Constitution. See 

LeCroy v. Hanlon, 713 S.W.2d 335,341-43 (Tex. 1986); Dallas County v. Sweitzer, 881 S.W.2d 

757,765-66 (Tex. App.-Dallas 1994, writ denied); Tex. Att’y Gen. Op. No. GA-023 1 (2004) at 3. 

Section 26.008(b) provides that the excess contributions are to be paid to the county general 

fund. After the county receives the funds, it must ensure that the excess contributions are “used only 

for court-related purposes.” TEX. GOV’T CODE ANN. $26.008(b) (Vernon 2004). Section 26.008(b) 

does not expressly require the county to create a separate fund or adopt a separate budget for the 

excess contributions, nor does it address accounting methods. We will look at the laws governing 

budget preparation in Hamilton County to determine whether the excess contributions should be 

placed in a separate fund with a separate budget. 

County budget-making authority is vested in the commissioners court. See Hooten v. 

Enriquez, 863 S.W.2d 522,528-29 (Tex. App.-El Paso 1993, no writ), Comm ‘rs Court ofCaZdweZZ 

County v. CriminaZ Dist. Attorney, 690 S. W.2d 932,933 (Tex. App.-Austin 1985, writ ref d n.r.e.); 

see also TEX. Lot. GOV’T CODE ANN. $5 111.008; .039; .068 (Vernon 1999) (adoption of budget 

by commissioners court). Chapter 111 of the Local Government Code governs budget preparation 

in Texas counties. The Hamilton County budgeting process is subject to chapter 111, subchapter A, 

which applies to counties with a population of 225,000 or less.4 See TEX. Lot. GOV’T CODE ANN. 

$ 111 .OOl (Vernon 1999).’ Subchapter A requires Hamilton County to prepare an annual budget: 

“During the 7th or 10th month of the fiscal year, . . . the county judge, assisted by the county auditor 

or county clerk, shall prepare a budget to cover allproposed expenditures of the county government 

4See U.S. BUREAU OF THE CENSUS, U.S. DEFT OF COMMERCE, 2000 CENSUS OF POPULATION, TEXAS QLJICKFACIX, 

avaihble at http://quickfacts.census.gov/qfd/states/48/48193.htmJ (population of Hamilton County in 2003 estimated 

at 8,118) (last visited June 14, 2005). Thus, Hamilton County may not operate under the alternate method of budget 

preparation applicable to counties with a population of more than 125,000. See TEX. LOC. GOV’T CODE ANN. 5 111.061 

(Vernon 1999). 

‘See also id. $5 111.03 1 (subchapter B applies to a county with a population of more than 225,000); 111.061 

(county with a population of more than 125,000 may choose to operate under subchapter C instead of subchapter A or 

B). 
Ms. L. Marliessa Clark, C.P.A. - Page 4 (GA-0340) 

for the succeeding fiscal year.” Id. 9 111.003 (emphasis added). “After final approval of the budget, 

the commissioners court may spend county funds only in strict compliance with the budget, except 

in an emergency.” Id. $ 111.010(b). See id. 6 lll.OlO( c ) ( emergency amendment of the budget); 

see also id. § 111 .Ol 1 (subchapter A “does not prevent the commissioners court from making 

changes in the budget for county purposes”). Thus, as a general matter, the county has one budget 

for the fiscal year. 

Hamilton County has express authority to adopt a special budget for certain kinds of funds. 

For example, if the county receives revenue “from a new source not anticipated before the adoption 

of the budget and not included in the budget for that fiscal year,” the county auditor shall certify the 

receipt of the revenue to the commissioners court, and “the court may adopt a special budget for the 

limited purpose of spending the revenue for general purposes or for any of its intended purposes.” 

Id. $ 111.0108 (Vernon Supp. 2004-05). Similar provisions authorize the commissioners court to 

adopt a special budget for the limited purpose of spending for its intended purpose “public or private 

grant or aid money. . . available for disbursement in a fiscal year but not included in the budget for 

that fiscal year” and “revenue from intergovernmental contracts . . . available for disbursement in 

a fiscal year but not included in the budget for that fiscal year.” Id. $9 111.0106, .0107 (Vernon 

1999). 

No provision authorizing a special budget applies to the excess contributions returned to the 

county pursuant to Government Code section 26.008. The section 26.008 funds are not “from a new 

source not anticipated before the adoption of the budget.” Id. 3 111.0108 (Vernon Supp. 2004-05). 

Hamilton County began receiving excess contributions pursuant to section 26.008 of the Government 

Code in 1999. See McMullen Letter, supra note 2, at 1. After the county began to receive excess 

contributions in 1999, it could anticipate receiving more such funds in subsequent years. The excess 

contributions are not “grant or aid money” or “revenue from intergovernmental contracts” within the 

other provisions authorizing special budgets. TEX. Lot. GOV’T CODE ANN. $5 111.0106, .0107 

(Vernon 1999). Accordingly, the Hamilton County Commissioners Court does not have authority 

to adopt a special budget, distinct from the annual county budget, for the excess contributions 

received by the county pursuant to Government Code section 26.008. 

The legislature has authorized the county judge to estimate revenues to be received during 

the ensuing fiscal year. The itemized budget prepared by the county judge “must contain a complete 

financial statement of the county” that shows, among other information, “the funds received from 

all sources during the preceding fiscal year; . . . the funds available from all sources during the 

ensuing fiscal year; . . . [and] the estimated revenues available to cover the proposed budget.” Id. 

$ 111.004(b)(3)-(5). It is within the discretion of the county judge to estimate the excess 

contributions that the county will receive in any fiscal year. See tierra v. McClellan, 250 S.W.2d 

241,245 (Tex. Civ. App.-San Antonio 1952), aff’d, 258 S.W.2d 72 (Tex. 1953); Tex. Att’y Gen. 

Op. Nos. O-2076 (1940) at 6,0-1231 (1939) at 3. 

While the Hamilton County Commissioners Court lacks authority to adopt a special budget 

for the excess contributions, the Local Government Code authorizes it to provide that the funds 

maintain their separate identity in the county budget. See TEX. Lot. GOV’T CODE ANN. 0 113.004(c) 
Ms. L. Marliessa Clark, C.P.A. - Page 5 (GA-0340) 

(Vernon 1999). The county must take some measures to ensure that the excess contributions are 

“used only for court-related purposes for the support of the judiciary.” TEX. G~v’T CODE ANN. 

9 26.008(b) (V emon 2004). The commissioners court may, for example, require the county treasurer 

to keep these funds in a special account within the county general fund. “The county treasurer, as 

chief custodian of county funds, shall keep in a designated depository and shall account for all 

money belonging to the county” and “shall receive all money belonging to the county from whatever 

source it may be derived.” TEX. Lot. GOV’T CODE ANN. $8 113.001, .003 (Vernon 1999). The 

county treasurer is required to “divide the funds received by the treasurer’s office” into classes 

according to Local Government Code section 113.004, and “[tlhe commissioners court, as 

it considers proper, may require other accounts to be kept, creating other classes of funds.” Id, 

8 113.004(a)-(c). See Tex. Att’y Gen. Op. No. JM-933 (1988) at 2 (commissioners court may 

require separate bank account for airport fund). See also Tex. Att’y Gen. Op. No. H-1254 (1978) 

at 2 (county may place different county funds in a single bank account as long as limited purpose 

funds are segregated by proper accounting procedures). The comptroller recognizes that counties 

may establish “special revenue funds,” defined as a category of funds “used to account for the 

proceeds of specific revenue sources (other than special assessments, expendable trusts or for major 

capitol [sic] projects) that are legally restricted to expenditure for specified purposes.” 

COMPTROLLER OF PUBLIC ACCOUNTS, BUDGETING HANDBOOK FOR TEXAS COUNTIES, SAMPLE 

CLASSIFICATION OF ACCOIJNTS, app. C (2001), available at http://www.window.state.tx.us/lga 

/budgetco (last visited June 6,2005). See TEX. Lot. GOV’T CODE ANN. $ 112.003 (Vernon Supp. 

2004-05) (the State Comptroller of Public Accounts “shall prescribe and prepare the forms to be used 

by county officials in the collection . . . and in the disbursement of funds”). 

After the budget is adopted, section 111.091(a) requires “the county auditor. . . [to] open an 

appropriation account fir each main budgeted or special item in the budget.” Id. $ 111.091(a) 

(Vernon 1999) (emphasis added). The commissioners court should consider drafting the budget so 

that expenditures from excess contributions constitute a special item in the budget for which a 

separate appropriation account must be opened. Thus, the county commissioners may take measures 

to separate the excess contributions within the general fund and to insure that they are spent only for 

“court-related purposes for the support of the judiciary.” TEX. GOV’T CODE ANN. $26.008 (Vernon 

2004). 

V. Mav A Countv Accumulate Excess Contributions from Year to Year? 

You next ask whether section 26.008 allows these funds to be accumulated from year to year. 

Section 26.008 does not provide a deadline for spending these funds. The commissioners court has 

broad discretion over the allocation of county funds, subject to judicial review on an abuse of 

discretion standard. See Hooten, 863 S.W.2d at 529; Weber v. City of Sachse, 591 S.W.2d 563, 

565-66 (Tex. App.-Dallas 1979, writ dism’d); Tex. Att’y Gen. Op. No. GA-0295 (2005) at 6. See 

generally Comm i-s Court of Caldwell County, 690 S.W.2d at 933-34. The commissioners court 

may make reasonable decisions about the time when the excess contributions are used for courtrelated purposes, subject to judicial review for abuse of discretion. See Hooten, 863 S.W.2d at 529. 

Any such funds remaining at the end of a fiscal year must be used for court-related purposes at a 

future time. 
Ms. L. Marliessa Clark, C.P.A. - Page 6 (GA-0340) 

VI. Court-related Purposes 

Your third question raises the following issues: whether various day-to-day expenses to 

support the judiciary, such as fees for court-appointed attorneys, court reporters, juvenile detention, 

and wages and benefits for court employees, constitute court-related purposes; whether these 

expenses may be offset against section 26.008 funds; and whether Local Government Code section 

112.001 allows the county auditor to require such accounting. As to your fourth question, you ask 

if it is the intent of section 26.008 to allocate the excess contributions only for extraordinary 

expenses of the judiciary.6 See Request Letter, supra note 1, at 2. 

We will consider together the two issues that require us to address the meaning of “courtrelated purposes” in sections 21.006 and 26.008 of the Government Code: whether the day-to-day 

expenses of the judiciary constitute court-related expenses, and whether section 26.008 requires the 

excess contributions to be allocated only to extraordinary expenses of the judiciary. This office has 

determined that “‘court-related purposes’ under section 2 1.006 of the Government Code include not 

only judges’ salaries, but any other costs necessary to support the operation and maintenance of the 

courts and the administration of justice.” Tex. Att’y Gen. Op. No. JC-0158 (1999) at 3; see also 

Tex. Att’y Gen. Op. No. JC-0376 (2001) at 2 (funds distributed to the counties under section 26.008 

may be expended to compensate court employees). Thus, the section 26.008 funds may be allocated 

in the county budget for these day-to-day expenses of the judiciary. Section 26.008 does not require 

the excess contributions to be allocated for extraordinary expenses of the judiciary, but it does not 

prohibit the commissioners court from allocating these funds for such purposes. The commissioners 

court is authorized to make reasonable decisions as to whether a particular expenditure is for courtrelated purposes, subject to judicial review for abuse of discretion. See Hooten, 863 S.W.2d at 529; 

Weber, 591 S.W.2d at 565; Tex. Att’y Gen. Op. No. GA-0231 (2004) at 4. 

VII. Mav Excess Contributions be Offset APainst Funds Budgeted for Court-related 

Purposes in Prior Fiscal Years? 

We turn to your question about the “offset” of excess contributions. Hamilton County did 

not maintain a separate account for section 28.006 funds in the past and cannot now show how these 

funds were allocated and expended under the budgets for prior fiscal years.7 As county auditor, you 

have proposed “offsetting” excess contributions received in the past against the amount allocated in 

each prior budget for court-related purposes. See E-mail from L. Marliessa Clark, Hamilton County 

Auditor, to Susan Garrison, Assistant Attorney General, Opinion Committee (Apr. 8,2005,3:24:27 

PM, CST). You note that “during the 2003-2004 budget year this county spent $97,573.17 in 

support of the judiciary [and] we received $1,266.68 in ‘excess contributions.“’ Id. Thus, you take 

the position that all “excess contributions” received in prior years have been spent for “court-related 

purposes.” Id. You ask whether Local Government Code section 112.001 authorizes you to require 

6For example, the commissioners court might wish to save the excess contributions to cover costs of a capital 

murder trial. Clark Telephone Conversation. 

‘Telephone Conversation with Honorable Andy J. McMullen, Hamilton County Attorney (Apr. 8,2005). 
Ms. L. Marliessa Clark, C.P.A. - Page 7 (GA-0340) 

such accounting of the excess contributions received in prior fiscal years. See Request Letter, supra 

note 1, at 2. 

Section 112.001 provides as follows: 

In a county with a population of less than 190,000, the county 

auditor may adopt and enforce regulations, not inconsistent with law 

or with a rule adopted under Section 112.003,’ that the auditor 

considers necessary for the speedy and proper collecting, checking, 

and accounting of the revenues and other funds and fees that belong 

to the county. 

TEX. LOC. GOV’T CODE ANN. 5 112.001 (Vernon 1999) (emphasis added). See Tex. Att’y Gen. 

Op. Nos. M-579 (1970) at 2, C-276 (1964) at 3 (county auditor’s responsibilities under the statutory 

predecessor of section 112.001). 

Neither the county auditor nor the commissioners court may amend an expired county budget 

to provide that excess contributions received in that fiscal year were spent under the budget. Section 

112.001 does not in any case allow the auditor to amend the county budget because authority 

to amend the budget is vested in the commissioners court. See TEX. Lot. GOV’T CODE ANN. 

0 lll.OWMdW emon 1999). Nor may the commissioners court amend a budget for a fiscal year 

that has ended. Chapter 111, subchapter A establishes an annual budget cycle, and the court’s 

powers and duties relate to the budget adopted for a single fiscal year. See generah’y id. fj 111.003 

(budget prepared for all proposed expenditures for succeeding fiscal year). The commissioners court 

is authorized to amend the “original budget” and must “file a copy of its order amending the budget 

with the county clerk.” See id. 9 111.010(c). The “original budget” that may be amended is the 

budget for the current fiscal year that the commissioners court approved and filed with the county 

clerk pursuant to chapter 111, subchapter A. See id. $0 111.008, .009.9 Of course, if any courtrelated expense incurred in prior years remains unpaid, the commissioners court may allocate section 

26.008 funds to that expense in a future budget. See genera& Wailer County v. Freelove, 210 

S.W.2d 602,604 (Tex. Civ. App.-Galveston 1948, writ ref d n.r.e.) (suit by architect for fees not 

precluded by county’s failure to include fees in budget). 

The Hamilton County Commissioners Court, while preparing a particular budget that has 

since expired, could have decided to spend the excess contributions for court-related purposes under 

. 

‘Section 112.003 authorizes the state comptroller to “prescribe the manner ofkeeping and stating the accounts” 

of county officials. TEX. Lot. GOV’T CODE ANN. 9 112.003 (Vernon Supp. 2004-05). 

‘Attorney General Opinion MW-169 concluded that a commissioners court may amend an expired county 

budget. See Tex. Att’y Gen. Op. No. MW-169 (1980) at 2. We overrule this conclusion, which misread language in 

a judicial decision. See Rains v. Mercantile Nat ‘1 Bank at Dallas, 188 S.W.2d 798,803 (Tex. Civ. App.-El Paso 1945), 

tif’d, 191 S.W.2d 850 (Tex. 1946) (under statute authorizing budget change, subject to statute authorizing emergency 

amendment, ‘&a county budget may be amended at any time”). The office has already overruled the other conclusions 

in Attorney General Opinion MW- 169. See Tex. Att’y Gen. Gp. JM-784 (1987) at 12. 
Ms. L. Marliessa Clark, C.P.A. - Page 8 (GA-0340) 

that budget or to save such funds for future court-related purposes. See Hooten, 863 S.W.2d at 

528-29; Comm ‘KS Court of Caldwell County, 690 S.W.2d at 933 (commissioners court has broad 

discretion in making budgetary decisions). The expired budgets themseIves and records about their 

preparation might indicate whether the Hamilton County Commissioners Court made any decisions 

about excess contributions in past years. However, an attorney general opinion cannot determine 

whether a now-expired county budget allocated section 28.006 funds. This determination involves 

the investigation and resolution of fact questions, which cannot be done in an attorney general 

opinion. See Tex. Att’y Gen. Op. Nos. GA-0104 (2003) at 4, JC-0576 (2002) at 4 n.3, H-944 (1977) 

at 5. If it cannot be shown that the excess contributions were spent in prior years, the commissioners 

court should consider determining that those funds have accumulated from year to year and remain 

available to spend for court-related purposes under the county’s budget for the next fiscal year. 
Ms. L. Marliessa Clark, C.P.A. - Page 9 (GA-0340) 

SUMMARY 

Section 26.008 of the Government Code applies to court costs 

collected by certain counties and remitted to the comptroller to 

supplement county judges’ salaries. Under section 26.008, the 

Comptroller of Public Accounts returns excess contributions to the 

participating counties, to be used only for court-related purposes for 

the support of the judiciary. Section 26.008 does not require the 

Hamilton County Commissioners Court to create a separate fund to 

account for the excess contributions or to adopt a separate budget for 

those funds. The Hamilton County Commissioners Court does not 

have authority to adopt a special budget, distinct from the annual 

county budget, for the excess contributions. 

The “court-related purposes” for which the excess 

contributions may be spent include judges’ salaries and any other 

costs necessary to support the operation and maintenance of the 

courts and the administration of justice. Section 26.008 does not 

prohibit the commissioners court from allowing the excess 

contributions to be accumulated from year to year. 

The county budget of a prior fiscal year may not be 

retroactively amended to provide that excess contributions received 

in that year were spent under that budget; 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee