Honorable Harold Vittitoe 

County Attorney, Brooks County 

P. 0. Box 502 

Falfurrias, Texas 78355 

Dear Mr. Vittitoe: 

Opinion No. H- 12 

Re: Whether revenues collected 

in calendar year 1972 from 

that year’s ad valorem tax 

levy can be spent for expenses 

authorized by that year’s 

county budget duly adopted 

to the extent that the revenues 

from the levy appear in the 

budget as, available estimated 

revenues to be expended 

under various items of 

expenses therein set out 

and related questions? 

You have submitted a request for our opinion in answer to six 

questions all having to do withthe’budgetary process of Texas counties. 

We note that Brooks County has fewer than 225,000 residents and, 

therefore, is not governed by Article 1666a. Vernon’s Texas Civil 

Statutes. 

Your first question asks: 

“Can revenues actually collected in calendar 

year 1972 from the 1972 ad valorem tax levy in 

Brooks County, Texas be spent for expenses authorized 

by said County’s 1972 County Budget duly adopted to the 

extent that said revenues from said 1972 tax levy appear 

in said 1972 Budget as available estimated revenues to 

be expended under various items of expenses set out 

in the said 1972 budget?” 

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Honorable Harold Vittitoe, page 2. (H-12) 

This question has been expressly answered in Duval County V. Rios, 

326 S. W. 2d 42 (Tex. Civ. App. San Antonio, 1959, no writ history) 

where the court held that taxes collected during October, November 

and December on levys made during the same year were to be considered as “current revenues” of the county for that year. 

The San Antonio court relied upon the fact that the earlier 

contrary holding in McClellan v. Guerra, 154 Tex. 373, 258 S. W. 

2d 72 (1953) resulted in the adoption of what is now Section 9a of 

Article 689a (Acts 1953, 53rd Leg., ch. 439, p. 1056) which provides: 

“The county judge in preparing the budget to 

cover all proposed expenditures of the county government for the succeeding year shall estimate the 

revenue to be derived from taxes to be levied and 

collected during such succeeding year and such 

revenue shall be included in the estimated revenues 

available to cover the proposed budget. ” 

Section 3 of the 1953 Act declared: 

“The fact that under the present law it is not 

clear that revenue derived from taxes levied and 

collected during the year covered by the county 

budget constitute current revenue of the county to 

be used during that year to defray current expenses 

of the county should be taken into consideration in the 

preparation of all county budgets, and the fact that the 

larger counties and all cities of the State are now permitted to use, and are using, such revenues to defray 

their current expenses for the year, while small 

counties may be deprived of that right under recent 

court decisions, which will result in unjust discrimination against the smaller counties, creates an emergency 

11 

. . . . 

And see Guerra v. Rodriques, 274 S. W. 2d 715 (Tex. Civ. App. Austin, 

1955, error ref. n. r. e. ). 

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Honorable Harold Vittitoe, page~3, (H-12) 

Your first question, therefore, is answered “Yes”. 

Your second,third and fourth questions are conditioned upon an 

affirmative answer to question No. 1 and ask that we assume further 

that there are no cash balances in some of the county funds of Brooks 

County (although there are budgeted balances in such funds estimated to 

be supplied by the levy and collection of ad valorem taxes during the 

calander year 1972). 

Question No. 2 asks: 

“Under budget conditions outlined in Question 

No. 1, can County warrants be drawn, registered and 

delivered to the payee on such County Funds (containing 

no cash balances) so long as the aggregate of such warrants 

on each such fund, when added to warrants on each such 

fund pr,eviously drawn, registered and delivered to payee, 

do not exceed budgeted items of revenue and expense in 

each such fund in the 1972 budget? ” 

Your third question is: 

“If the answer to Question No. 2 is ‘rYes’f, do 

such warrants so drawn on funds without present cash 

.balances constitute a “debt” within the prohibition of 

Article 11, Section 7. of the Texas Constitution, where such 

estimated revenues from the 1972 tax levy shown to be 

expended in the 1972 budget are in fact collected in 19727” 

Your fourth question is: 

“DO such warrants so drawn on such funds without 

present cash balances constitute legal obligations of the 

County, supported by a pledge of the full faith and credit 

of the County, which entitle holders of such warrants as 

assignees for value to payment in the order of their 

registration so long as such budgeted revenues from said 

1972 tax levy are actually collected in calendar year 

1972 and thereafter deposited to such County Funds?” 

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Honorable Harold Vittitoe, page 4, (H-12) 

Section 7 of Article 11 of the Texas Constitution provides, in 

part: 

“But no debt for any purpose shall ever be incurred 

in any manner by any city or county unless provision 

is made, at the time of creating the same, for levying 

and collecting a sufficient tax to pay the interest thereon 

and provide at least two per cent (2%) as a sinking 

fund;. . . ” 

As used in this context, the word “debt” has been held to mean: 

‘1. . . [A] ny pecuniary obligation imposed by 

contract, except such as were, at the date of the contract, 

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 corporation. . . .‘I McNeil1 V. City of 

Waco, 89 Tex. 83, 33 S. W. 322, 324 (1895). 

renson V. Biake, 131 T&. 103, 

This definition has been cited and followed without exception in 

later cases: Brazeale V. Strenst& 196 S. W. 247 (Tex. Civ. App. 

Tewrkana, 1917, no writ history); Ste\ 

113 S. W. 2d 525 (1938); T. & N. 0. R. R 

141 Tex. 34, 169 S. W. 2d 713 (1943); Ochiltrel 

S. W. 2d 866 (Tex. Civ.App., 1963, error ref 

Lubbock, 412 S. W. 2d 376 (Tex. Civ. App. Amarillo, 1967. erro: 

n.r:e. ). 

. Co. V. Galveston County, 

e County V. Hedrick, 366 

. n. r. e. ): Foster V. City of 

r ref. 

Thus, the important consideration at the time the warrant is 

issued or the expense is incurred is whether “within the lawful and 

reasonable contemplation of the county officers” it will be satisfied out 

of current revenues for that year or out of some fund within the control 

of the county. 

When it has been determined that the sum of claims representing 

ordinary expenses amounts to as much as it reasonably could be expected 

the current revenues of the county would amount to, then even ordinary 

expenses thereafter incurred are within the prohibition of the Constitutional provision. Braseale V. Strength, supra. 

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Honorable Harold Vittitoe, page 5, (H-12) 

That it is contemplated the obligation “might” come due and be 

paid out of current revenues is not sufficient to meet the Constitutional 

requirements. Stevenson v. Blake, 131 Tex. 103, 113 S. W. 2d 525 (1938) 

held that a contract for attorneys fees, part of which were to become 

payable when judgments in pending litigation became final, was void 

or voidable under the Constitutional prohibition. 

That, in fact, the indebtness is not paid out of available current 

revenues or the current revenues do not develop as anticipated, does not 

render the obligation void. Wilkinson v. Franklin County, 94,s. W. 2d 

1190 (Tex. Civ. App. Texarkana. 1936,. error ref. ); Guerra v. Rodriguez, 

274 S. W. 2d 715 (Tex. Civ. App. Austin, 1965, error ref. n. r. e. ); 

‘County v. Kent, 374 S. W. 2d 313 (Tex. Civ. App. Beaumont, 1963, no 

writ history). 

Whether or not a particular obligation amounts to a debt in violation 

of the. Constitutional provision in Article 11. Sec. 7, is a fact question 

and the courts will consider the entire transaction, its background, 

etc., and will test the ,reasonablenes~s of the contemplation that the 

obligation would be paid from current revenues. Rains v. Mercantile 

Natl. Bank, 144 Tex. ,466, 191 S. W. 2d 850 (1946) is a good example. 

See also Clay Building Co. v., City of Wink, 141 S. W. 2d 1040 (Tex. Civ. 

App. El Paso, 1940, no writ history). 

Under these authorities we answer your second question “yes”. 

so long as it is lawful and reasonable to anticipate that, in fact, the 

warrants will ultimately be paid out of current revenues. 

With the same assumption, the answer to your third question is 

“No”. Such warrants would not constitute a “debt” within the prohibition 

of Article lli Section 7 of the Constitution of Texas. 

The answer to your fourth question is “Yes”. 

Your fifth question asks: 

“Where the County Budget of Brooks County 

for 1972 (adopted in the summer of 1972 by said 

Court, under the emergency provisions of Article 

689a-11, increasing therein the estimated revenues 

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Honorable Harold Vittitoe, page 6, (H-12) 

and budgeted expenses for 1972, before said Court meets 

as a Board of Equalization and sets the tax rate for said 

County’s ad valorem tax levy for 1972, can all ad valorem 

taxes actually collected by Brooks County in calendar year 

1972 from said 1972 ad valorem tax levy, which are shown 

in said amended 1972 budget as etstimated revenues 

expendable in 1972, be expended under said amended budget 

in 1972 for expenses authorized by said amended budget?” 

The amendment of county budgets is controlled by Article 689a-11, 

which provides, in applicable parts: 

‘1. . . when the budget has been finally approved 

by the commissioner’s court, the budget, as approved by 

the court shall be filed with the clerk of the county clerk, 

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 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. . . . ‘I 

Assuming, as your question states, that the budget is “duly 

amended” under these provision, then we answer your fifth question 

“Yes”. 

Provided all other conditions are met, the date on which an amend - 

ment to the budget is adopted does not affect the liability of “current 

revenues” during the tax year to meet its expenditures. See for instance 

McClellan V. Guerra, 152 Tex. 373, 258, S. W. 2d 72 (1953), in which the 

court, while holding the current revenues were insufficient, was not 

concerned, apparently, by the amendment on August 16, 1951 of the 

1951 budget which had been originally adopted on September 11, 1950. 

See also Rains v. Mercantile Natl. Bank, 144 Tex. 466, 191 S. W. 2d 850 

(1946). 

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Honorable Harold Vittitoe, page 7, (H-12) 

Your sixth question asks: 

“Under the amended budget circumstances outlined 

in Question No. 5, would the same answers be given to 

Questions Nos. 2, 3 and 4, above, if the words ‘Question 

No. 5’ were substituted for the words ‘Question No. 1’ 

in the first line of Question No. 2? ” 

Our answer is “Yes”, based upon the same assumption we made 

in our answer to question five. 

-SUMMARY - 

With reference to courties whose budgets are 

not governed by the provisions of Article 1666a, Vernon’s 

Texas Civil Statutes, provided the requirements of 

Article 689a-11 are met, amendments to the budget may be 

made at any time pr i 0.r to and during the affected tax 

year; taxes levied and collected during the tax year 

constitute current revenues for that year and are available to pay validly adopted budgetary items; a budgetary 

item is not invalid as constituting a “debt” within the 

prohibition of Article 11, Section 7, of the Texas Constitution if the county commissioners court could lawfully 

and reasonably anticipate that it would be wholly satisfied out of current revenues during the budget year, or 

out of some fund then within their control. 

Very truly yours, 

n 

Attorney General of Texas 

APPROVED: 

J&IN M. BARRON 

DAVID M. KENDALL, Chairman 

Opinion Committee 

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