Case Information
*1 September ~2.~ 1948 F. A. Taylor Opinion Ro. V-694 Hon. County Auditor Re: Authority of Coramis-
Brssoria County sioners I Court to amend Angleton, Texas
its budget to construct a road and to buy land to enlarge storage for road machinery not in- cluded in the original budget.
Dear Sir:
We refer to letter in which you submit the following:
"First, under .the Optional Road Law of 1947, we are operating under a strict budget
system. We have a budget’ for road mainte-
nance in the amount of $271,300.00 to be used
In the upkeep of the present roads and bridges.
And we also set u a roe,d construction budget
in the amount of 8 495,712.48. This amount for
the constructlon budget is composed of the efi-
timated cost of the construction of the roads
enumerated in the budget, and contingent fund
of $31.274.98. The question under considera-
tion now came up when the Coinmissioners Court
Instructed the Engineer to construct a road
that was noton construction budget, and to
for it out of the contingent fund. (Empha- added throughout this opinion) ” . . .
“Therefore I will ask you if the Commis- sioners Court has the authority to purchase
the lots referred to In the lnclosed letter,
and to order the construction of a road not in the budget for this year, and pay for it
out of the cc@ingent fund of the construc- tion budget?
. Hon. F. A. Taylor, page 2 W-694
Your reference concerning the'lots is to a let- ter written by Hon. Sam Lee, County Attorney, to Ron. E.
W. Oarnett, County Engineer of Rrasoria County, from which we quote:
"With reference to the lots to be pur- chased by the court for the purpose of stor- ing road equipment thereon, from the facts, I believe an emergency exists. I understand that the present lots are insufficient to house the equipment and unless these adjoin- ing lots are purchased immedi$tely they will be sold to private interests.
An examination of a copy of the Braeoria Coun- ty budget for the year 1948 in the Comptrollerfs.OfSice, reveals that three items mentioned in your request appear under the general heading of Road and Bridge Fund and are listed under the specific heading of Precinct Rxpendl- tures (all precincts combined) $271,300,00 is "earmark- ed" for maintenance costs; $4$4,437.50 is 'earmarked' for '"48 Construction Projects and the $31,274.98 Is "earmarked" for contingencies. According to,the budget $464,437.50 is to be used for 48 road projects without \ naming, identifylng,or describing any of said projects within the budget. But from the County Judge, County Attorney, County Auditor and County Engineer we learn- ed that even though the &'road construction projects were not named within the 1948 budget, the Commissioners' Court had specifically designated the 48 projects on whLch the above money would be used; and in addLtion thereto, it specified the exact amount that would be ex- pended on each of said projects.
Although this contingency is just as much an appropriation for road and bridge purposes as the ap- propriations for maintenance and cons;ruction costs6 so long as the money Is "earmarked" for contingencies It can only be used for items which will necessarily arise during the budget year but which cannot appropriately be classified under any of the specific purposes set out elsewhere in the budget. First Rational Bank of Norman v. City of Norman, 75 P.(2d) 1109. A contingent fund is set up for minor disbursements incidental to the princi- pal classes of expenditures, enumerated in the budget, wh3ch would be useless to specify more accurately. Dun- woody v. United States, 22 Court of Claims Reports, 269.
Applying the abov~e principles to the instant i i.
Hon. F. A. Taylor, page 3 (V-694) case, it is. our’opinion that the cost of constructing a road not specified in the original budget could not be
pala for directly out of the contingent appropriation
of the road and bridge fund without first amending the
county budget provided for in Articles 689a-g-10-11-12 and 20, V. C. S. The question for our determination
therefore is whether the Commissioners* Court of Brasoria County has the authority to amend its budget so as to in- clude the road construction now under consideration.
In the case of Dancy v. Davidson, 183 S. W.(2d) 195, writ refused the court had under consideration the authority of the bornmissioners I Court to purchase a cer- tain building which was not provided for In the budget.
The trial court granted an Injunction prohibit1 the
Commissioners’ Court from buying the property. 3 he
Court of Civil Appeals held that no sufficient order had been made to authorize the purchase but modified the ln- junction so as to permit the commissioners1 Court to ap- propriately amend the budget to provide funds for such
purchase. We quote the following from said case at page 201:
” Appellants 'construe the injunction
&iei as prohibiting the purchase of the
building even though the budget law be
complied with by appropriate action In the
future. The decree itself seems to be li-
mited to the order of April 29, 1944, which,
as above pointed out, is insufficient in
Itself, under the budget law, to authorize
the paying out of public funds. However,
in order to remove all doubt as to the con-
struction or effect of the decree the same.
will be reformed so as to restrain Cameron
County and Its Commissioners1 Court from
paying to Mrs. Jennie B. Bell any sum,of
public monies under the order of April 29,
1944, standing clone, without prejudice how-
ever, to such otherand further actions as
may be taken by said County and its Commis-
sloners’ Court with reference to the pro-
posed purchase of the building involved. . .'
In the case of Bexar County v. Hatleg, 136 Tex. 354, S.W.(2d) 980, the Supreme Court had under con- sideration the authority of the Commissioners' Court to amend its county budget which originally contained, among numerous funds set up and appropriated for various coun- *4 Hon. F. A. Taylor, page 4 (V-694)
ty purposes, a fund of $16,000.00 to cover the expense of holding elections in the county. Such fund was item- ized as follows:
“Judges and Cleliks $ 9,275000 Repairing booths and ballot boxes 100.00~ Delivering ballot boxes 600.00 Rent chairs, tables & supplies &);.gE Hauling election equipment PrLnting, stationery, stamps 4,200:OO Advertising 25.00 School Judses and Clerks 20b 0 00 $ 16,OOO.OO” The Commissioners Court passed an order amending its budget so as to provide for the rental~of three hundred voting machines with an option to purchase, and the or- der decreed that the original budget “be so amended that the fund remaining unexpended ($15,824.84) of the $16,- 000.00 (itemized above) budgeted to elections In the gen- eral fund, be reallocated and expended as follows: Freight on * * * 210 voting machines delivered to San Antonio $ 6,100.OO Full coverage insurance * * * on * * * 300 voting
machines 350.00 Storage on * * * 300 voting machines for June and July, 1940 300.00 Drayage zl,joti.oo Part payment on rental MiscelIaneous expense 574.34 ._, . .j ,\ Total $ 15,~2?.84” The Supreme Court in holding that the Commis- sioners’ Court had,the authority to expend county money for the rental of voting machines after amendment of the budget as pointed out above made the following observa- tion:
“We cannot agree with the contention of plaintiffs that the commissioners’ court was without authority to amend its budget. ‘It is apparent from the act requiring i *5 Hon. F. A. Taylor, page 5 (V-694)
the court to adopt an annual budget for carry-,
ing on the county's business that the legis-,
lature recognized some latitude must be allow-
ed, within the restrictions imposed with res-
pect to the mode of operation, to make the budg-
.,get plan workable; and that a budget as ori-
ginally made and adopted, because of expendl-
tures necessitated by %.nusual and unfopeseen
conditions which could not, by reasonably dlli-
gent thought and attention, have been lnclud-
ed in the original budget' might 'from time to
time' be amended to meet such 'emergency ex-
penditures, in case of grave public necessity.’
Arts. 68ga-11, 68ga-20, supra.
II . . .
"It can hardly be said conclusively that the court was.lacking in 'reasonably qiligent
thought and attention' in not adopting vot-
ing machines for election purposes at the time
it made the original budget, or that it was
an abuse of their discretion to adopt the'm
when it did so. It Is fair to assume that the
circumstances making it advisable and to the
county's best interest to adopt voting ma-
chines came about after the original budget
had been set up and were not then foreseen.
The commissioners' court, having authority
to adopt voting machines, and having done so,
had '8 broad discretion to accomplish the
purposes intended,' so long as it observed
the constitutional and statutory limitations
imposed upon it. Dodson v. &r&all, Tex.
Civ. App., S.w.2d 621~, 623. Certainly
it would be unfair to assumeagalnst the mem-
bers of the court, who are presumed to have
acted lawfully.in the discharge of their duties, that they intended to act unlawfully.
"It will be noted also that the order amending the budget did not require the ex-
penditure of any fund not already set up for
expense of elections in the county. In other
words, the appropriation made by the amend-
ment was within an object (election txpense)
of the budget as originally adopted.
In view of the foregoing, we are of the opin- *6 I i Hon. F. A. Taylor, page 6 (V-694)
ion that i .f the Commissioners' Court determines that a necessity exists for the construction of a road not pro- vided for in the budget, said court may amend the budget as provided in Article 68ga-11 to allocate money from the unencumbered Contingent Fund for the construction of such road.
Also, you inquire as to whether the Commission- ers' Court may purchase certain lots for the purpose of storing road and bridge equipment thereon a.nd pay for the same out of the Contingent Fund within the Road and Bridge Fund. The Attorneys General of Texas have consistently held that purchases of this kind may only be paid ggrpt of the Permanent Improvement Fund of the county.
fore, it is our opinion that the lots in question may not be purchased and paid for out of the Contingent Fund of the Road and Bridge Fund.
We are enclosing copies of Opinions Ros. o-3286 and O-7423 rendered by a prior administration, which ade- quately answer your second question.
SUMMARY Any unencumbered portion of the Contin- gent Fund of the Road snd Bridge Fund of Brazoria County may be allocated by the Commissioners' Court for the purpose of constructing road projects not specifical- ly mentioned in the 1948 budget by amend- ment of the bu et as provided In Article 689a-11, v. C. 2.
The Contingent Fund of the Road and Bridge Fund may not be used by the comtnis- sioners' Court for the purpose of purchas- ing lots for storing road and bridge equip- ment; said purchase may only be made out of the Permanent Improvement Fund of the COWL- ty, which may be provided by amendment of the budget If there is available money In such fund.
Yours very truly, WTW:JR:wb:mw