                            September ~2.~1948

Hon. F. A. Taylor                    Opinion Ro. V-694
County Auditor
Brssoria County                      Re: Authority of Coramis-
Angleton, Texas                          sionersI Court to amend
                                         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,dconstructionbudget
       in the amount of 8495,712.48. This amount for
       the constructlonbudget 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 CoinmissionersCourt
       Instructed the Engineer to construct a road
       that was noton constructionbudget, 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?
  .

490   Hon. F. A. Taylor, page 2   W-694 1


                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 insufficientto
           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 '"48Construction 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,ordescribing 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 constructionprojects
      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
      appropriationfor 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~eprinciples to the instant       i   i.
Hon. F. A. Taylor, page 3   (V-694)                   491


case, it is.our’opinion that the cost of constructinga
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 constructionnow under consideration.
          In the case of Dancy v. Davidson, 183 S. W.(2d)
195, writ refused the court had under considerationthe
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 commissioners1Court to ap-
propriately amend the budget to provide funds for such
purchase. We quote the following from said case at page
201:
     ”
            Appellants 'construethe 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 Commissioners1Court 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, 150 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-
492   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        20b000
                                       $ 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 (itemizedabove) 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
          Part payment on rental          zl,joti.oo
          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
                                                                 0   i
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-
    .,getplan workable; and that a budget as ori-
     ginally made and adopted, because of expendl-
     tures necessitated by %.nusualand unfopeseen
     conditionswhich 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 'emergencyex-
     penditures, in case of grave public necessity.’
    Arts. 68ga-11, 68ga-20, supra.
         II
          . . .
         "It can hardly be said conclusivelythat
     the court was.lacking in 'reasonablyqiligent
     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
     circumstancesmaking 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 constitutionaland statutory limitations
     imposed upon it. Dodson v. &r&all, Tex.
     Civ. App., 118 S.w.2d 621~,623. Certainly
     it would be unfair to assumeagalnstthe 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-
      I    i




494       Hon. F. A. Taylor, page 6   (V-694)


          ion that i.f the Commissioners'Court determines that a
          necessity exists for the constructionof 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 constructionof 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.ndpay 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 ImprovementFund of the county.
          fore, it is our opinion that the lots in question may not
          be purchased and paid for out of the ContingentFund 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
               constructingroad 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,




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