September 7, 1965 #-7x!L 

LN Pfw I 

Honorable Wallace Shropshlre 

County Attorney 

Travis County 

Austin, Texas 

Opinion No. C-499 

Re: Whether or not county funds 

may be transferred from an 

exlstlng line item In the 

county budget to another 

exlstlng line Item and related questions concerning 

the amendment of the county 

Dear Mr. Shropshlre: budget. 

This office Is In receipt of your letter of August 10, 

1965, wherein you request our opinion on various questions lnvolvlng amendment of the county budget under the Texas Budget 

Law. We quote the questions posed by you as follows: 

'II 1 Where all of the budgeted funds for a 

particular line item or object have been expended 

bc t there is a surplus In other llnr Item accouri‘,s 

In the Department budget, what is the proper procedure to be followed by the Commlssloners~ Court 

In transferring funds from the surplus accounts to 

the depleted account: (Can these funds be transferred from the budget of one Department to another 

Department?) 

"(a) Is It necessary for the Court to declare 

an emergency as set out in Art. 6&a-11? 

"(b) Or may the Court simply enter an order 

authorizing the County Auditor to affect the transfer of these funds a8 might be Indicated by Art. 

6&a- 20? 

"(c) If (b) I s permissible should a formal order 

be drawn or will a mere entry on the minutes of the 

Court showing what was done suffice? 

11 . . * 

"2. .(a) What Is the proper procedure to be 

followed in amending the budget 80 as to create a 

new object or line Item which was not budgeted 

originally but for which new object surplus funds 

are available In other budgeted line ltem accounts? 

-2355- 
Hon. Wallace Shropshlre, page 2 (Ca99 ) 

What is the procedure where new objects or expendltures exceeds the budget? 

"(b) Will a declaration of emergency by the 

Commlssloner.9~ Court as set out in Article 68ga-11 

suffice to accomplish such a transfer? 

II . . . 

“3. (a) Where the county has Incurred obligations for expenditures which were not in the 

budget when It was adopted and without prior 

authorization of the Commissioners' Court, will 

the subsequent authorization of payment by the 

Commissioners1 Court be tantamount to a budget 

amendment or must the Commissioners' Court adopt 

the proper budget amendment or change to affect 

the amendment just as If the obligation had not 

yet been incurred? 

"(b) Is it the duty of the Auditor to lnform the Commissioners' Court that a bill presented by him for payment Is authorized within 

the budgeted funds and that there Is sufficient 

appropriated funds available to pay same? 

"(c) Can the Auditor approve a bill for 

presentment to fhe Commissioners' Court for payment If there Is no authorized budgeted approprlatlon or If the budgeted approprlatlon has 

been depleted? 

,I ,t . . . 

In considering your questions, we quote the following pertinent statutes from the Texas Budget Law. Article 68ga-11, Revised 

Civil Statutes of Texas, In part reads: 

"The Commlsslonerst Court In each county shall 

each year provide for a public hearing on the county 

budget -- which hearing shall take place on some 

date to be named by the Commissioners1 Court subsequent to August 15th and prior to the levy of taxes 

by said Commissioners' Court. Public notice shall 

be given that on said date of hearing the budget 

as prepared by the County Judge will be considered 

by the Commissioners' Court. Said notice shall name 

the hour, the date and the place where the hearing 

-2356- 
don. ilallace Shropshlre, page 3 (C- bg9) 

follows : 

shall be conducted. Any taxpayer of such county shall 

have the right to be present and participate In said 

hearing. At the conclusion of the hearing, the budget as prepared by the County Judge shall be acted 

upon by the Commissioners’ Court. The Court shall 

have authority to make such changes In the budget 

as In their judgment the law warrants and the interest of the taxpayer demand. 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. In all cases where such amendments to the 

original budget Is made, a copy of the order of the 

Court amending the budget shall be filed with the 

Clerk of the County Court, and attached to the budget 

originally adopted.” 

Article 68qa-20, Revised Clvll Statutes of Texas, reads as 

“Nothing contained In this Act shall be construed as precludlnR the Legislature from making 

changes In the budget for State purposes or prevent the County Commissioners’ Court from maklnp: 

changes In the budRet 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 budget 

for school purposes: and the duties required by 

virtue of this Act of State, County, City and 

School Officers or Representatives shall be performed for the compensation now provided by law 

to be 

7 

aid said officers respectively.” (Emphasis 

added. 

We note that one of the purposes of the budget law is to 

effectively discourage and prevent deficit Bpending by counties, In 

accordance with the public policy of the state, as established by 

Section 7 of Article XI, of the Texas Constitution. McClellan v. 

Guerra, 152 Tex. 373, 258 S.W.2d 72, (1953). 

-2357- 
Hon. Wallace Shropshlre, page 4 (c-499) 

Section 11 of Article 68ga requires that no funds of the 

county shall be expended except In strict compliance with the budget as adopted by the Court. This section, however, does authorize 

amendments to the budget for emergency expenditures In cases 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. 

Section 20 of Article 68ga expressly authorizes the 

Commissioners to make changes In the county budget for county purDoses * However. these changes are llmlted to chances within the 

bbjects covered-by the budget. Rains v. Mercantll; National Bank of 

Dallas, 188 S.w.2~ 798, (Tex.Clv.App. 1945), affirmed 144 Tex. 490, 

mW.2d 850 (1946); Southland Ice Co. v. City of Temple, 100 F.2d 

825 (5th Clr. 1939). It was held In Attorney General's Opinion No, 

O-1053 that Section 20 of Article 68ga does not authorize the Commissioners Court to Increase the budget after Its adoption. 

It Is our opinion that the Le lslature Intended for the 

restrictions In Section 11 of Article 8 8ga to apply to situations 

where new Items were added to the original budget which would require an Increase In the original budget. This reasonlng Is In 

keeping with the purposes of the budget as outlined above. In the 

Rains case, the Court In dlstlngulshl between the provisions of 

Section 11 and Section 20 of Article 6 3 9a said: 

"The quoted portion of Art. 68ga-11 and Art. 

68ga-20 seems to be the only provisions relating to 

amendment of the budget. Art. 68ga-11 is very 

specific as to when the county budget may be amended 

and the steps to be taken to make the amendment. 

It Is thought that the restriction as to amendment 

applies only when new or additional expenditures not 

provided for In the original budget are sought to 

be added by amendment. Under Art. 6&5ga-20, subject 

to llmltatlon of Art. 68ga-11, a county budget may 

be amended at any time. The limitation of expenditures provided for by the second amendment to the 

County budget was not such as comes within the 

llmltation provided In Art. 68ga-11." 

added.) 

(Emphasis 

As will be noted from the above quote, the Court refers to the 

"chaqe" in Article 68ga-20 as an "amendment". It also points out 

that amendment under Section 11" and "amendment under Section 20" 

of Article 68ga are different. 

Based on the above discussion, we now pass to the questions under question 1. We are of the opinion that where all of 

-2358- 
Hon. Wallace Shropshlre, page 5 (C- 499 ) 

the budgeted funds for a particular line item have been expended, but 

there Is a surplus In other line Item accounts In the department budget, and the Commissioners' Court reallocates the funds, transferring 

funds from the surplus line Item account to the depleted line Item 

account, this muld require an amendment to the budget as contemplated by Section 20 of Article 68ga. Also, it Is our opinion that 

funds may be transferred from the budget of one department to the 

budget of another. However, Constitutional funds may not be transferred In contravention of Section 9 of Article VIII of the Texas 

Constitution. The transferring of the funds In both Instances above 

do not require new expenditures not Included In the original budget, 

therefore, the provisions of Section 11 of Article 68ga are not 

applicable. 

It Is our oplnlon that the correct procedure In transferring 

the funds In the above two situations would be to amend the budget. 

However, this would not require the existence of an emergency as 

contemplated by Section 11 of Article 689a. An order of the Commlssloners' Court showing how the funds were reallocated and showing 

that the budget was amended would, In our opinion, suffice to affect 

the amendment of the budget under the above situations. 

In answer to your questlons In question 2, we are of the 

oplnlon that where a new line item which was not budgeted orlginally, 

but for which new object funds are available in other budgeted accounts, the budget must be amended as contemplated by Section 11 of 

Article 68ga to transfer funds to the new Item account. in the 

Southland Ice Co. case, the Court said at page 829: 

"The city could not transfer funds and apply them 

to a new object not mentioned in the budget, there being no emergency. . . .' 

As can be seen from the above quote , an emergency must exlst as contemplated by Section 11 of Article 68ga In order to amend the budget 

and transfer such funds. 

The correct procedure to amend the budget under the clrcumstances of question 2 would be for the Commissioners' Court to 

enter an order, setting forth how the budget Is to be amended, finding an emergency to exist, that a grave public necessity exists to 

meet unusual and unforeseen conditions which could not, by reasonably 

diligent thought and attention have been Included In the original 

budget. A copy of such order should be filed with the County Clerk 

and attached to the budget originally adopted. 

-2359- 
Hon. Wallace Shropshlre, page 6 (C-499 ) 

In answer to your first question under question 3, we are 

of the opinion that where the county Incurred obligations for expenditures which were not In the budget when originally adopted, 

the Commissioners1 Court could thereafter amend the budget to lnelude these obligations. Tn Morrison v. Kohler, 207 S.W.2d 

Clv.App. 1947, error ref. n.r.e.), the Court said at page 95 8 

51 (Tex. 

: 

"We cannot agree with appellants' contention 

that the Order of the Commissioners' Court of Eecember 9, 1946, amending the budget for the several commlsslonerts road precincts Is void for the reason that 

on such date no emergency then existed authorizing such 

amendment because the services of the engineers, for 

which the amendment was made to cover, had already been 

performed. We find nothing in the budget law requlrlng 

the'budget be amended at the time or before an obllgatlon not Included In the budget could be legally assumed. 

We feel that It would be altogether too strict a construction to place upon the provisions of the budget laws 

governing counties to require that the budget should be 

amended at the time the obligation was Incurred. On the 

contrary we believe that the Commissioners' Court in 

amending any budget to cover any Item of expense not already covered in the original budget should be controlled 

by the facts and circumstances as existed at the time the 

obligation was Incurred or assumed. . . ." 

We are further of the opinion that In order to legally pay 

these Incurred obligations which were not Included In the original 

budget, the budget must be amended as contemplated by Sectlop 11 ?f 

Article 68ga. Under this section, this would require the existence 

of an emergency. 

As to the duties of the County Auditor, Article 1651, Revised Civil Statutes of Texas, makes It hls duty to "see to the 

strict enforcement of the law governing county finances." As held 

by this office In Opinion No. 0-6220 (1944), this duty would Include 

the enforcement of the terms and provisions of the county budget. 

In answer to your question (b) under question 3, we are 

of the opinion that the Auditor does Inform the Commissioners' Court 

that a bill Is authorized by budgeted funds and that there are funds 

avallable to nav the bill when he aDDroves same. The Commlssloners~ 

Court has no ju&isdlctlon to allow the bill or claim without the 

approval of the Auditor. Wyatt Metal & Boiler Works v. Llpscomb, 

87 S.W.2d 331, (Tex.Clv.App. 1935, error ref.). To answer the (c) 

portion of your-third queaiion, we are of the-opinion that the.Atiditor should not approve a bill for presentment to the Commissioners' 

-2360- 
Hon. Wallace Shropshire, Page 7 (c-499 1 

Court If there Is no budgeted approprlatlon or If the budgeted appropriation has been depleted. Article 1666, Revised Civil Statutes 

of Texas, provides as follows: 

"He shall prepare an estimate of all the revenues 

and expenses, and annually submit It to the Commissioners 

Court, which Court shall carefully make a budget of all 

appropriations to be set aside for the various expenses 

of the county government In each branch and department. 

He shall open an account wlth each appropriation In said 

budaet, and all warrants drawn aaainst same shall be 

en&e; to said account. He shail carefully keep an 

oversight of same to see that the expenses of any deartment do not exceed said budget appropriation, and 

eep said court advised of the condition of said appropriation accounts from time to time." (Bnphasis added.) 

------- SUMMARY 

1. One of the purposes of the budget law 

Is to effectively discourage and prevent deficit 

spending by counties, In accordance with the 

public policy of the state, as established by 

Constltutlonal Article 11, Sec. 7. 

An amendment to the budget Is required 

as c%emplated by Section 20 of Article 68ga 

when Commissioners' Court reallocates funds, 

transferring funds from a surplus line Item 

account to a depleted line Item account in the 

same department. 

3. The transferring of funds from one department to another is authorized and requires 

an amendment as contemplated by Section 20 of 

Article 68ga. 

4. Correct procedure In amending budget 

under Section 20 of Article 68ga would be for 

the Commissioners' Court to enter an order 

amendlng the budget and showing how the funds 

were reallocated. 

-2361- 
Hon. Wallace Shropshlre, page 8 (c-499 ) 

5. An amendment to the budget is required 

as contemplated by Section 11 of Article 68ga 

where funds are transferred from surplus new 

object funds to new line Item object not orlglnally budgeted. 

6. Correct procedure in amend1 

3 

county 

budget under Section 11 of Article 6 ga Is for 

the Commissioners' Court to enter an order setting forth how budget Is to be amended, declaring an emergency, finding that grave public 

necessity exists to meet unusual and unforeseen 

conditions which could not, by reasonably dillgent thought and attention have been Included In 

original budget, file copy of such order with 

County Clerk and attach such copy to budget 

originally adopted. 

7. Budget may be amended so as to Include 

obligations Incurred before budget was adopted. 

8. Budget must be amended as contemplated 

by Section 11 of Article 68ga in order to lnelude obligations Incurred by county which were 

not Included in original budget. 

9. Eutles of County Auditor would Include 

the enforcement of the terms and provisions of 

the county budget. 

10. When Auditor approves claim or bill, he 

does Inform Commissioners1 Court that bill Is 

authorized by budgeted funds and that there are 

funds available to pay such bill. 

11. Auditor should not approve bill for 

presentment to Commissioners1 Court If there 

Is no budgeted appropriation for such bill or 

If the budgeted appropriation has been depleted. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

DA:ra:zt 

Dean Arrlngto 

Assistant 

-2362- 
fion. Wallace Shropshlre, page 9 (C-499 ) 

APPROVED: 

OPINION COMMITTEE 

W. 0. Shultz, Chairman 

John Reeves 

Grady Chandler 

Ivan Williams 

Robert Flowers 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. Wright 

-2363-