                                 ATTORNEY          GENERAL        OF TEXAS
                                             GREG      ABBOTT



                                                 May l&2006



The Honorable Robert E. Talton                           Opinion No. GA-043 1
Chair, Committee on Urban Affairs
Texas House of Representatives                           Re: Whether a municipality that adopts its budget
Post Office Box 2910                                     by ordinance must adopt budget amendments by
Austin, Texas 78768-2910                                 ordinance (RQ-0414-GA)

Dear Representative    Talton:

         You ask whether in certain instances the City of Seabrook (the “City”) amended its budget
in a manner that is not consistent with applicable law.’ You ask in particular whether a municipality
that adopts its budget by ordinance must adopt any budget amendments by ordinance. See Request
Letter, supra note 1, at 1. You also suggest that certain budget amendments may have been
inconsistent with sections 102.009 through 102.011 of the Local Government Code and the City’s
charter. See id.; see also TEX. LOC. GOV’TCODEANN. $5 102.009-,011 (Vernon 1999). You list
three specific instances when the City “apparently.     did not [] act” to authorize the expenditure of
funds in various amounts in accordance with law:

                           1) On May 20,2003        in an amount of $80,000.

                         2) On June 17,2003, the majority of Council attempt[ed] to
                 correct [its] action of May 20, 2003 by declaring it an emergency
                 without an ordinance.

                       3) . [O]n October 21,2003 where an amount of $250,000.
                 was appropriated and an additional $l,OOO,OOO. was added on
                 November 4,2003.

Request Letter, supra note 1, at 1. You understand that “no ordinances were proposed for any of
these appropriations as well as being over the approved budget.” Id. at 2. In addition, you state that
the Seabrook charter provides “under Sections 5.21 a & b that any expenditure of $l,OOO,OOO.or
more or 30% of the reserve fund must have the vote of the people except in a couple of emergency
situations.” Id.



        ‘See Letter from HonorableRobert E. T&on, Chair, Committeeon Urban Affairs, Texas House of
Representatives, to HonorableGregAbbott,AttorneyGeneralof Texas (Nov.9, 2005)(on file with the Opinion
Committee,also available   at   hap:llwww.oag.state.tx.us)
                                                       [hereinafterRequestLetter].
The Honorable Robert E. Talton - Page 2             (GA-0431)




         Our analysis of the issues you raise is necessarily limited. Whether specific laws or charter
provisions were violated in particular circumstances is a question requiring the determination of facts
and is beyond the purview of the opinion process. See Tex. Att’y Gen. Op. No. GA-0156 (2004) at
6, 10 (stating that fact questions cannot be answered in the opinion process). Such a question also
requires us to construe the charter with respect to the facts. “This office does not construe city
charters unless the charter provision [at issue] raises a question of federal or state law.” Tex. Att’y
Gen. Op. No. GA-0356 (2005) at 2. Consequently, we consider only whether the City must amend
its budget by ordinance, and we briefly outline what state law requires in the budget amendment
context.

        Chapter 102 of the Local Government Code governs the process by which a municipality
adopts an annual budget. See TEX. LOC. GOV’T CODE ANN. § 102.002 (Vernon 1999) (requiring a
municipal budget officer to prepare a budget each year “to cover the proposed expenditures for the
succeeding year”); see also id. 5 102.00 1 (designating the mayor or city manager as a municipality’s
budget officer). When a municipal governing body,has finally approved the budget, it may spend
municipal funds “only in strict compliance with the budget, except in an emergency.”                Id. §
 102.009(b). Even in the absence of an emergency, however, a municipality may make “changes
in the budget for municipal purposes.”         Id. 5 102.010. Finally, in certain circumstances a
municipality’s charter prevails over chapter 102: “If a municipality has already adopted charter
provisions that require the preparation of an annual budget covering all municipal expenditures and
if the municipality conducts a public hearing on the budget.    . , the charter provisions control.” Id.
5 102.011.

         The City’s charter requires the governing body to adopt the annual budget “by ordinance.”
SEABROOK,TX,CHARXZR~~~.V(A), 5 5.03(e) (Aug. 11,1979), available at http://www.municode.
com/Resources/gatewayasp?pid=lO298&sid=43           (last visited May 15,2006). A municipal goveming
body may amend or repeal an ordinance only by an act of “equal dignity.” City of Hutchins v.
Prasljka, 450 S.W2d 829,832 (Tex. 1970); accord City of&m Antonio v. Micklejohn, 33 SW. 735,
736 (Tex. 1895); cf Tex. Att’y Gen. Op. No. MW-0460 (1982) at 4 (stating that the legislature
cannot repeal an existing statute except by following the same procedure by which the statute was
adopted).     An ordinance may be amended or repealed “only by another ordinance, not by
resolution[,] or order[,] or motion” of the city council that is not passed and published with the same
formality of an ordinance. Red Bird Vill. v. State ex rel. City of Duncunville, 385 S.W.2d 548,550
(Tex. Civ. App.-Dallas       1965, writ ref d); accord City ofpanhandle v. Bickle, 3 1 S.W.2d 843,846
(Tex. Civ. App.-Amarillo         1930, writ dism’d w.0.j.); see City of Hutchins, 450 S.W.2d at 833
(holding that a municipality could not amend a comprehensive zoning ordinance by resolution); City
of San Antonio, 33,S.W. at 736 (holding that a city council camiot, by resolution, abolish an office
created by ordinance); J.D. Abrtims, Inc. v. Sebastian, 570 S.W.2d 81,86 (Tex. Civ. App.-El Paso
 1978, writ ref d n.r.e.) (concluding that a city could not amend or abolish a grading ordinance by a
“mere motion”).

        Accordingly, the City may amend its budget ordinance only by adopting an ordinance. To
the extent the City attempted to amend its budget by acts of lesser dignity, its actions are without
effect.
The Honorable Robert E. Talton - Page 3               (GA-043 1)




        You further suggest that the City violated sections 102.009 through 102.011 of the Local
Government Code. See Request Letter, supru note 1, at 1. After a municipal governing body has
finally approved the annual budget, section 102.009(b) permits the governing body to spend funds
only in “strict~compliance with the budget, except in an emergency.” TEX.LOC.GOV’TCODEANN.
§ 102.009(b) (Vernon 1999). Section 102.009(c) effectivelydetinestheterm“emergency”as“acase
of grave public necessity to meet an unusual and unforeseen condition that could not have been
included in the original budget through the use of reasonably diligent thought and attention.” Id.
§ 102.009(c). In addition, section 102.010 permits a municipal governing body to make “changes
in the budget for municipal purposes.“’ Id. 5 102.010.

        “Whether an emergency within the meaning of section 102.009 exists or whether a budget
amendment is for municipal purposes” within the meaning of section 102.0 10 are questions of fact
that an attorney general opinion cannot resolve. Tex. Att’y Gen. LO-92-71, at 3-4; see also Tex.
Att’y Gen. Op. No. GA-0156 (2004) at 6, 10 (stating that fact questions cannot be answered in the
opinion process). We cannot, therefore, determine whether the three instances you listed complied
with sections 102.009 and 102.010 of the Local Government Code.

         Finally, as you suggest, under section 102.011 of the Local Government Code a city charter
may supply procedural requirements in addition to those found in chapter 102. See TEX.LOC.GOV’T
CODEANN. 5 102.011 (Vernon 1999). We cannot determine whether particular actions constituted
a violation of a city charter. See Tex. Att’y Gen. Op. No. GA-0356 (2005) at 2 (stating that this
o&e typically does not construe~city charter provisions); Tex. Att’y Gen. Op. No. GA-01 56 (2004)
at 6, 10 (stating that fact questions cannot be answered in the opinion process).




          ‘We cannotfmd anyjudicial decisionsthat discusswhat constitutes“municipalpurposes”for purposesof
section102.010.But see Gardnerv. Ci@ofHamilton, 536S.W.2d422,424(Tex.Civ.App.-Waco 1976,writref d
n.r.e.)(stating,for purposesof a statuteauthorizingmunicipalitiesto exercisethe powerof eminentdomainto acquire
landfor municipalpurposes,a municipalpurposeis onethat“promotesthe comfort,convenience,safety,andhappiness
of the citizensof the municipalityratherthanthe welfareof the generalpublic”).Moreover,we cannotconcludefrom
the face ofthe statlltethat section102.010wouldallowa municipalityto amendits budgetto spendfundsthat exceed
the appropriationsthat wereapprovedin the previouslypassedannualbudget.
The Honorable Robert E. Talton - Page 4         (GA-043 1)




                                      SUMMARY

                       A municipality may amend an ordinance only by adopting an
               act of equal dignity. Thus a municipality that adopts its budget by
               ordinance may not amend the budget by adopting a resolution,
               motion, or order.

                       A municipal governing body may expend funds only in strict
               compliance with an adopted budget “except in an emergency.” TEX.
               Lot. GOV’T CODE ANN. 5 102.009(b) (Vernon 1999). Even in the
               absence of an emergency, however, a municipal governing body may
               change the budget “for municipal purposes.” Id. 5 102.010.

                                            Verv trulv vours.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
