Honorable L. L. Geren
County Attorney
Limestone  County
Groesbeck,  Texas

Dear   Sir:                          Opinion No. O-4830
                                     Re: Can the county budget now be
                                          legally amended to include ob-
                                          ligations incurred prior to the
                                          ad~option of the amendment,  and
                                          related questions ?

                We acknowledge receipt of your request for the opinion of
this department on the questions stated therein, and quote from your let-
ter as follows:

                “The County Auditor of Limestone  County has
       requested an opinion on the following matter and I here-
       by ask your advice on same:

                “Limestone  County is divided into four road
       precincts and the motor registration    and ad valorem
       tax money was equally divided between the four pre-
       cinct funds for the year 1942.   The anticipated re-
       ceipts for this year on this fund is estimated at $gO.-
       000.00 and under order of the Commissioners       Court
       apportioning   the money equally, each precinct was al-
       lotted an estimated   $20,000.00 for its Road and Bridge
       Fund.

                “Precinct No. 1 owes $76.277.56 in outstand-
       ing scrip against its Road and Bridge Fund.   Precinct
       No. 2 owes $123,362.71;   Precinct 3 owes $97,749.30
       and Precinct No. 4 operates on a cash basis.

               “The budget of the Commissioners    Court for
       the year 1942 allotted $20.000.00  to each precinct fund
       to which is added the gasoline tax refund money.

                 “In order to simplify the matter and show the
        actual condition of these funds I am appending hereto
        ‘Exhibit A’ which contains a clear statement of the funds
       ‘rn question.
Honorable   L. L. Geren,   page 2 (O-4830)




               “You will note from an examination      of this ex-
      hibit that Precinct No. 1 had total estimated budget re-
      ceipts for 1942 of $20.252.79.   issued scrip for $15,163.-
      86, has interest this year estimated     at $4,780.02,   has
      paid $1.924.74   in interest and has interest due estimat-
      ed at $2.865.26.    The Commissioners      Court has approved
      bills on this precinct for $3.956.65    and the County Audi-
      tor has refused to issue scrip for this and the other pre-
      cincts unless you rule that he can legally do so.       This
      fund is over the budget $4.093.73    if you count estimated
      interest due.

               “In past years the persons who have held the po-
      sition of County Auditor have not kept a record of the
      amount of scrip issued that bore interest,      nor has the
      County Tr~easurer, hence it is impossible      for the pres-
      ent Auditor to set out accurately    the amount of interest
      due and he must, of nec’essity,   estimate it.

               “The Auditor estimates   the amount of interest
      due on Precinct No. 2 at $6,000.00.    He has paid $2,524.-
      24 interest already and this leaves a balance of $3.475..76.
      Counting this estimated   interest due, Precinct No. 2’s
      Road and Bridge Fund has spent $1,729.43      in excess of
      the budget.

              “For Precinct No. 3 there is estimated interest
      due of $6,000.00 of which he has paid $1,047.60,     leaving
      an estimated balance due of $4.952.40.     Counting the es-
      timated interest due Precinct No. 3’s Road and Bridge
      Fund has spent $3,857.33  fin excess of, the budget.

              ‘If you do not include the estimated  interest due
      then Precinct No. 1 has expended $1,238.47     in excess of
      the budget and of the estimated receipts   for th,e year 1942.

               “Prior-tc~incu+-rirrg    any of these expenditures   in
      excess of the estimated       receipts the County Auditor warned
      the Commissioners       of Precincts    1. 2 and 3 that any debts
      they incurred would be in excess of the budget and there-
      fore illegal.    Nevertheless    the Commissioners     incurred
      the obligations.    Although there have been no unprecedented
      rains and storms than usually occur each year, the court
      declared an emergency        on this basis.   Gf course this pre-
      sents a difficult situation because every year we do have
      rains that wash out bridges and damage roads.

              “The Commissioners    Court, upon the refusal of
      the County Auditor to pay off the obligations amended the
      budget with the following order:
Honorable    L. L. Geren,   page 3 (o-4830)




              II‘Whereas,    it is necessary    to amend the budget
     for 194L insofar as same relates to Commissioners              Pre-
     cincts and/or Road & Bridge Fund #l, Road & Bridge
     Fund #2, Road & Bridge Fund #3, for the reason that an
     emergency     exists and did exist during the first eight
     months of this year and that it was a case of grave pub-
     lic necessity   to meet unusual and unforeseen        conditions
     which could not, by reasonable        diligent thought and at-
     tention, have been included in the original budget for
     1942, in that by reason of an act of God, there was much
     rain and overflfSws, and the roads and bridges were dam-
     aged to an extent that it was necessary        for Commissioners
     Precinct #l, to exceed the budget in the sum of $3,900.00;
     Commissioners       Precinct No. 2 to exceed the budget in the
     sum of $l,SOO.OO; and Commissioners            Precinct No. 3, to
     exceed the budget in the sum of $4,606.00;         and by reason
     of said emergency      expenditures    to meet unusual and un-
     foreseen conditions which could not by reasonable           dili-
     gent thought and attention have been included in the ori-
     ginal budget:    On motion made by Herman Adams and
     seconded by Wess Popejoy, all members            of the court
     voting in favor of said motion, it is ordered that the Bud-
     get for 1942 be amended so that Road & Bridge Fund #l ,
     will be increased     $3,900.00;   Road & Bridge Fund #2 will
     be increased    $1,500.00;    and Road & Bridge Fund #3. will
     be increased    $4,606.00.’

              “From this order you can readily see that the bud-
      get is being amended in the approximate  sum of $lO,OOO.OO
      to care for past obligations.

                 “We wish to know the following:

               “(1) Can the bu&get~now be amended to make legal,
      obligations  incurred prior to the adoption of the amended
      budget?

                 “(2) Must the County Auditor include the estimated
      interest    due in computing the expenditures under the bud-
      get?

                “(3) Can the Commissioners     spend money in ex-
      cess   of their anticipated receipts for the year 1942?

              “(4) Is the order of the Commissioners        Court
      amending the budget valid ?
‘Honorable    L. L. Geren.    page 4 (o-4830)




              Article   689a-9, Vernon’s  Annotated            Civil Statutes, provides
for the preparation   of the County budget.  Article           68qa-11,   Vernon’s  An-
notated Civil Statutes provides in part:

                 u
                    . . . When the budget has been finally ap-
         proved by the Commissioners’        Court, the budget,,
         as approved by the Court shall be filed with the
         Clerk of the County 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.    Except that emergency     expenditures.   in
         case of grave public necessity,     to meet unusual and
         unforeseen    conditions which could not, by reasonably
         diligent thought and attention, have been included in
         the original budget, may from time to time be au-
         thorized by the Court as amendments        to the orig-
         inal budget.    . . . ”

                 Article   689a-20,    Vernon’s    Annotated    Civil   Statutes,    pro-
vides:

                  “Nothing contained in this Act shall be con-
         strued as precluding the Legislature      from making
         changes in the budget for State purposes or pre-
         vent the County Commissioners’       Court from mak-
         ing changes in the budget for county purposes or
         prevent the governing body of any incorporated
         city or town from making changes in the budget
         for city purposes,   or prevent the trustees or other
         school governing body from making changes in the
         budgets for school purposes:     and the duties re-
         quired by virtue of this Act of State, County, City
         and School Officers    or Representatives    shall be per-
         ford     for the compensation    now provided by law to
         be paid said officers respectively.”

               This department has repeatedly ruled that the commissioners’
court of a county is without authority to make any expenditure    of funds of
the county except in fixed compliance    with the budget, except emergency
expenditures   in case of grave public necessity,  as outlined by Section 11
of Article  6gqa. supra.   This department has also repeatedly   ruled that
Section 20, of Article   6Sqa, supra, does not authorize the commissioners’
court to increase the budget after its adoption and that to hold otherwise
would destroy the very purpose of the act.

                 Article   689a-9.    Vernon’s    Annotated    Civil Statutes,      provides,
in part:
Honorable   L. L. Geren,       page 5 (o-4830)




                      The budget shall also contain a complete
              II
                   .   .   .


      financial statement of the county, showing all outstand-
      ing 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 en-
      suing year, the estimated    revenues available to cover
      the proposed budget and the estimated     rate of tax which
      will be required.”

               As we understand your first question, you desire to have our
opinion on the following question:    Can the county budget now be legally
amended to include obligations    incurred prior to the adoption of said amend-
ment?    In answer to this question, it is our opinion that the county budget
cannot now be legally amended to include obligations      incurred prior to
the adoption of said amendment.      In other words, the commissioners’
court had no legal authority to incur any obligations    or make any ex-
penditures of county funds except in fixed compliance      with the county bud-
get, except emergency    expenditures   in case of grave public necessity,   as
outlined by Section 11 of Article 689a, supra.     Said provision  (Sec. 11,
Art. 689~s) does not authorize the expenditure    of county funds or the incur-
ring of obligations which are to be paid out of current revenues without
first amending the county budget in compliance with the above mentioned
statute.

               As we understand your second question, you have reference
to interest on obligations    owed by the county as interest by the various
commissioners’     precincts.    Under the facts stated, it is apparent that the
interest due is interest on script issued by the county for the various com-
missioners’   precincts.    It is to be understood that we are not passing upon
the question as to whether or not the county can legally pay interest on
such script in this opinion.     However, assuming     that such interest can
legally be paid it is our opinion that the county auditor must include the
interest paid in computing the expenditures       under the budget.   With ref-
erence to the interest due and unpaid, the county auditor must include
this in computing the legal expenditures      to be made under the budget,
provided, claims for such interest are duly registered        as required and
authorized by Article    1626 and 1627, Vernon’s Annotated Civil Statutes.

              In connection with the foregoing we direct your attention to
the case of Wilkinson vs. Franklin County, 94 S.W. (2nd) 1190, wherein it
is stated:

               “Article   1625, R.S., plainly denotes the order in
      which warrants     drawn against the county treasury are to
      be paid, and amounts to an appropriation       of the funds in
      the county treasurer     to the payment of all warrants legal-
      lg drawn against the several classes      of funds in the order
      of their registration.    And the order of the commissioners’
      court of Franklin county of July 13, 1934, requiring the
                                                                                       . _


Honorable   L. L. Geren.   page 6 (O-4830)




      county treasury first to pay current warrants drawn
      against the county general fund ahead of senior regis-
      tration warrants  drawn against said fund is violative
      of article 1625, R.S.. and is therefore void.”  (Also
      see the case of Clarke & Courts v. Panola County,
      161 S.W. (2d) 148)

              What was said above with reference    to the registration of
claims for interest due, is equally applicable to all other claims against
said fund or funds and such claims must be paid in the order of their reg-
istration.

               We now consider your third question.        This is a general
question and therefore,    our answer must be general.       The term “debt’as
used in the constitutional   provision requiring that special provision be
made for paying the obligation,     has a technical meaning.      The term has
been defined as comprehending       any pecuniary obligation imposed by con-
tract, except such as is at the date of the agreement,       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 im-
mediate control of the commissioners’       court.   Debts for the ordinary
running expense of the county, payable within a year out of the incoming
revenues of the year, and with other indebtedness        not clearly in excess of
the yearly income for general purposes are not within the purview of the
constitutional  provision.  and may be lawfully created without the making
of special provision for their payment.

                If, at the time when the contract is made, it is contemplated
that any part of the pur,chase price will be paid from taxes levied and col-
lected for future years, the contract falls within the prohibitive class.
But the debt will be held valid without special provision for payment where
it appears that the parties intended that payment should be made from cur-
rent funds, and that, in the reasonable     contemplation   of the parties,    there
is sufficient money within the immediate       control of the county to discharge
the indebtedness     or that there was a reasonable    expectation   of collecting
the money out of taxes legitimately     levied for such purposes,      although
payment was not made from the current funds available.             On the other
hand, where the contract creating the debt contemplates          that payment
shall be made out of funds of future years, the contract will not be con-
strued as creating a debt upon the current funds payable in future years,
even though a sufficient fund was on hand at the date when such contract
was made.     (The Austin Brothers vs. Montague County, 291 S.W~. 628, re-
versed on other points 10 S.W. (2nd) 718; Texas Jurisprudence,            Vol. 11.
Page 671. authorities     cited)

              It will be noted from the foregoing that the commis.sioners’
court can incur obligations   in excess of their anticipated receipts where
a debt has been created and provisions     for payment of the same are made
in compliance  with the constitutional  pr,ovision requiring that special pro-
vision be made for Raying the obligation.     However, obligations   cannot be
Honorable   L. L. Geren,    page 7 (O-4830)




made where it appears that the parties intended that payment should be
made from current funds and said obligation or Obligations exceed the
anticipated receipts of current funds.

                With reference     to your fourth question, generally    speaking,
after the county budget has been finally approved by the county commis-
sioners’ court, said court would not be authorized to amend the original
budget, unless the expenditures       set out in the amendment to the budget
were emergency       expenditures,   and were caused and necessitated      by grave
public necessity    to meet unusual and unforeseen      conditions which could
not, by reasonable     diligence,  and attention have been included in the origi-
nal budget.   However, under the facts presented,        the obligations  in ques-
tion were incurred prior to any amendment of the county budget, and as
above stated in answer to your first question, it is our opinion that the
county budget cannot now be legally amended to include such obligations.
Therefore   it is our opinion that the order of the commissioners’         court,
as quoted above, amending the county budget is invalid.

                In connection with the foregoing,  we want to point out that the
discretion   of the commissioners’   court is not absolute authority to expend
county funds in the case of an emergency,      and is final, only where the ques-
tion is debatable or where the existence     of an emergency    is unquestionable.
However,    said court has no authority to determine that an emergency       exists,
and expend county funds therefore,     where the facts clearly show the con-
trary.   Said court has no legal authority to declare an emergency      and evade
the law, where in fact, no emergency     exists.

                Opinions Nos. O-1022 and O-1053 of this department contain
discussions   of the budget law. Opinion No. O-1053 defines the terms
“grave” and “public necessity”..    Opinions Nos. O-1053 and O-1022 hold that
the question of “grave public necessity”    is a fact question to be determined
primarily   by the commissioners’    court.

               We enclose    copies   of these    opinions      for your c’onvenience.

               Trusting    that the foregoing     fully answers      your inquiry,   we are

                                                Yours    very    truly

                                                ATTORNEY          GENERAL     OF TEXAS

                                                By /s/   Ardell    Williams
                                                                  Ardell Williams
AW :ff/cm                                                                Assistant
Enc 1.
               APPROVED     OCT 29,1942
                /s/ Gerald C. Mann                                          APPROVED
               ATTORNEYGENERALOF                  TEXAS                       Opinion
                                                                             Committee
                                                                              By BWB
                                                                                ChaIrman
