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                       The Attorney               General of Texas
                                          April     14,    1980

MARK WHITE
Attorney General

                   Honorable Selden N. Snedeker                 Opinion No. NW-169
                   Criminal District Attorney
                   Cameron County Courthouse                    Re: Whether      Cameron    County
                   Brownsville, Texas 78520                     may transfer funds within the 1979
                                                                county budget after the 1979 fiscal
                                                                year to pay a claim for county
                                                                membership dues incurred during
                                                                the fiscal year.

                   Dear Mr. Snedeker:

                          You state that Cameron County incurred an obligation for dues in a
                   local area development organization prior to the end of the 1979 fiscal year
                   on September 30, 1979. We assume, without deciding, that this constitutes a
                   proper expenditure of public funds. See Attorney General Opinion H-397
                   (1974). The invoice for the dues wasyceived       after September 30, 1979.
                   Upon receipt of the invoice, the 1979 Cameron County budget contained
                   insufficient funds In its “dues and subscriptions” budget item to pay the
                   invoice. However, sufficient unexpended 1979 budget funds are available for
                   transfer from another 1979 budget item. You have requested our opinion on
                   three questions. First, must the payment of the membership dues constitute
                   an emergency expenditure to allow a budget amendment?        Second, can the
                   1979 budget be amended after September 30, l979? Third, must the budget
                   amendment be requested prior to January 1,1980?

                          Your first question concerns the provisions of article 689a, V.T.C.S.,
                   particularly   article   689a-11 and article   689a-20,    concerning budget
                   amendments.      An Rl Paso Court of Civil Appeals decision, affirmed by the
                   Texas Supreme Court, defined         the applicability    of the emergency
                   requirements of article 689&l& V.T.C.S.

                                 The quoted portion of Art. 689a-ll and Art.
                              689a-20 Seems to be the only provisions relating to
                              amendment of the budget.         Art. 689~11 is very
                              specific as to when the county budget may be
                              amended and the steps to be taken to make the
                              amendment.     It is thought that the restriction as to
                              amendment     applies only when new or additional
                              expenditures not provided for in the original budget
                              are sought to be added by amendment. . . .




                                                  ,p.     538
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Honorable Selden N. Snedeker    -   Page Two     (NW-16 9 1



(Emphasis added). Rains v. Mercantile National Bank of Dallas, 188 S.W.2d 798 (Tex. Civ.
4~. - El Paso l945), affirmed, 191S.W.2d 850 (19461.
      Following this interpretation,  Attorney General Opinion C-499 (1965) outlined   the
procedures for transferring funds within the budget.

           (Wlhere all of the budgeted funds for a particular line item have
           been expended, but there is a surplus in other line item accounts in
           the department budget, and the Commissioners’ Court reallocates
           the funds, transferring funds from the surplus line item account to
           the depleted line item account, this would require an amendment to
           the budget as contemplated   by Section 20 of Article 689a. Also, it
           is our opinion that funds may be transferred from the budget of one
           department to the bu%et of another.         However, Constitutional
           funds may not be transferred      in contravention   of Section 9 of
           Article VIII of the Texas Constitution.      The transferring of the
           funds in both instances above Q not require new expenditures not
           included in the original budget, therefore, the provisions of Section
           11of Article 689a are not applicable.

             It is our opinion that the correct procedure in transferring the
           funds in the above two situations would be to amend the budget.
           However, this would not require the existence of an emergency as
           contemplated    by Section 11 of Article 689a.   An order of the
           Commissioners’ Court showing how the funds were reallocated and
           show@ that the budget was amended would, in our opinion, suffice
           to affect the amendment of the budget under the above situations.

      Therefore, in reply to your first question, a finding of an emergency Is not required
before funds may be transferred by a budget amendment to increase the budget item for
“dues and subscriptions” to allow payment of the membership &es.

       Your second question concerns whether the 1979 budget can be amended after
September 30, 1979. You have indicated that, pursuant to article 1644a, V.T.C.S.,
Cameron County has adopted a fiscal year beginning on October 1 of each year. You have
further indicated that the obligation for membership dues was incurred prior to the end of
the fiscal year with the invoice being received after the end of the fiscal year. The
Beaumont Court of Civil Appeals in Morrison v. Kohler, 207 S.W.2d 951 (Tex. Civ. App. -
Beaumont 1947, writ ref’d n.r.e.), discussed the question of amending the budget to provide
for obligations previously incurred.

            We find nothing in the budget law requiring the budget be amended
            at the time or before an obligation not included in the budget could
            be legally assumed. We feel that it would be altogether too strict a
            construction   to place upon the provisions of the budget laws
            governing counties to require that the budget should be amended at




                                           p.   539
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              Honorable Selden N. Snedeker      -   Page Three          (NN-169)



                            the time the obligation was incurred. On the contrary we believe
                            that the Commissioners’ Court in amend@ any budget to cover any
                            item of expense not already covered in the original budget should
                            be controlled by the facts and circumstances as existed at the time
                            the obligation was incurred or assumed.

                     In Rains a,       the court also stated that “[ulnder Art. 689a-20, subject to the
              limitatton.f o Art. 689k-11, a county budget can be amended at any time.” Id. 188 S.W.2d at
              803. Therefore the 1979 budget may be amended after September 30, lg9, to transfer
              unexpended funds for payment of claims charged to the 1979 fiscal year.

                       Your third question, concerning whether the budget amendment request must be
              ma& prior      to January 1, 1980, is covered in our answer to your second question. The
              budget may       be amended at any time to transfer unexpended funds to existing budget
              items.

                                                         SUMMARY

                            Cameron County may transfer funds within the 1979 county budget
                            after the 1979 fiscal year to pay an obligation incurred during the
                            fiscal year.




                                                                 MARK     WHITE
                                                                 Attorney General of Texas

              JOHN W. FAINTER, JR.
              First Assistant Attorney General

              TED L. HARTLEY
              Executive Assistant Attorney     General

               Prepared by Jim Allison
               Assistant Attorney General

               APPROVED:
               OPINION COMMITTEE

               C. Robert Heath, Chairman
               Jim Allison
               Walter Davis
               Susan Garrison
               Rick Gilpin




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