                 THEATTORNEYGENERAL
                         OF TEXAS
GERALD C. MANN




    Honorable E. L. Shelton
    County Auditor
    Johnson County
    Cleburne, Texas
    Dear Sir:                  Opini.onNo. Q-3410
                               Re: If a budget,account has been over-
                                    drawn in 1940, is the account
                                    chargeable to the 1941 budget?
             Your recent request for an opinion of this department
     on the above stated question has been received.
             We quote from your letter as follows:
             "If a budget account has been overdrawn in 1940
         Is that chargeable to 1941 budget. For example; a
         fund has an overdraft at the bank on January lst, 3.941,
         which is caused partly from and overdrawn budget of
         1940 together with other previous years in similar
         mamer added   to which makes an overdraft at the bank
         on Januar lat.,1941 of $~,OOO.OO, is this chargeable
         to the 193:1 budget.
             'Ever since the enactment of the officer salary
         bill I have held that this should be done, not for
         one account but all, and I have struck opposition
         to this holding. I would like to be correct In the
         matter.
             "If they don't take this out of the budget of
         1941 I don't see how and where they ever expect to
         catch up.


             Your letter of April 24, 1941, presenting another ques-
     tion In connection with the above stated question reads in part
     as follows:
             "With further lnqulry, in the event you find that
         the overdraft from a previous year cannot be charged
         to the budget of a current year, could or would the
         delinquent tax collectfons have to be held to apply
Honorable E. L. Shelton, page 2           O-3410



    against this deficit or overdraft?"
         . . . . . .8,
        II

         From the facts stated in your letter, it is apparent
that there was an overdraft of Six Thousand Dollars ($~,ooo.oo),
at the bank, against the county on January 1, 1941, caused
partly from an overdrawn a,ccountin 1940, and previous years.
Article 68ga-9, Vernon's Annotated Civil Statutes, among other
things provides in effect that the budget shall contain a com-
plete financial statement of the county, showing all outstandi.ng
obligations of the county, the cash on hand to the credit of each
and every fund of the county government. The funds received from
all sources during the previous year, the funds available from
all sources during the ensuing year, the estimated revenues avail-
able to cover the proposed budget and the estimated rate of tax
which will be required. Article 68qa-11, Vernon's Annotated
Civil Statutes, In effect, provides in part that 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 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. It is stated in the case of Southland Ice Company
VS. City of Temple, 100 Fed. 2d 825, that "Subdivision 20 of
the Budget Law, authorizing changes in the budget, must refer to
changes within the objects covered by the budget, because if new
matters could be added to the budget, then the emergency provl-
sions would  serve no purpose."
        We do not know how the above mentioned overdraft WRS es-
tablished and do not pass upon the question of its validity be-
cause this question is not before us. However, apparently the
overdraft is a result of borrowing money by the county. Generally
speaking, counties are held to ha,veno power to borrow money, un-
less exvresslv authorized so to do bv constitutional or statutorr
provision; and such power will not be implied. (Corpus Juris    "
Secundum, Vol. 20, P. 1078).
        It has been held that powers conferred on a Board of
County Commissioners by the general law of the State do not in-
clude the power to borrow money; and it is not ordinarily con-
templated that the current expenses of counties are to be met
with borrowed money. The authorities are in harmony in denying
to one from whom money has been borrowed by a county without
authority the right to recover on the original contract of loan,
whether this be by note, bond, warrant, or otherwise. They are
also in harmony as to the ri,ghtto recover on qua,ntummerit the
moneys loaned if the county received the benefit of the money by
applying it to the payment of its valid indebtedness. (Ruling
Case Law, Vol. 7, P. 944).
-    .




    Honorable E. L. Shelton, Page 3          O-3410


            It is important to observe that a county may have the
    power to incur indebtedness without having the power to borrow
    money. The distinction Is not fanciful. It Is of peculiar
    significance In respect of constitutional provisions or statutes
    which prohibit counties from exceeding their current revenues.
    Thus, a county which has an empty treasury but the prospect of
    revenues for the year may have the power to incur an indebted-
    ness for a current county expense within such anticipated
    revenues where It does not have the power to borrow money to
    meet the expenditure. (American Jur., vol. 14, P. 225).
            It is a well established principle of law in this State
    that the Commissioners' Courts of the various counties have
    only such power as expressly or impliedly conferred upon them
    by law. After a careful search of the statutes and various
    authorities, we fail to find,any authority authorizing the
    county to have an overdraft as above mentioned. It is clear
    under the County Budget Law, above mentioned, that no expencli-
    ture of the funds of the county shall thereafter be made except
    in strict compliance with the budget as adopted by the court.
            In view of the foregoing authorities, the two above
    stated questions are respectfully answered in the negative.
             Trusting that the foregoing fully answers your inquiry,
    we are
                                      Yours very truly
                                ATTORNEY GENERAL OF TEXAS
                                      By s/ Ardell Wllllams
                                            Ardell Williams
                                            Assistant
    AW:mp:wc
    APPROVH) MAY 5, 1941
    s/Grover Sellers
    FIRST ASSISTANT
    ATTORNEY GENERAL
    Approved Opinion Committee By s/BWB Chairman
