   .


 Honorable  Toti A,    Craven
.County Auditor
 McLennan   County
 Waco, Texas

Dear   Sir:                                   n Opinion No. O-5184      (       ..
                                              7 :.R.q:, Amendment of the’county
                                                        budget.

       Your letter’ of April     3, 1943, requesting the opinton of this dep.art-
ment on certain   questions     stated therein with reference   to an amendment
                                                                      .,  :~~
of the county budget reads      as follows:
                                                                                          ,::
               “Article   689a-9 provides,       among other things, that a,
        county budget shall cover all proposed          expenditures      of the
        county government      for the year being budgeted and shall also
        contain a complete     financial    statement of the county and shall
        include a statement     of the fun~ds available     from all sources
        during the year budgeted.        In compiling    any budget covering       a
        future period of time, it is. of course,        necessary     to make es-
        timates both as to probable        expenditures    and revenues.       Using
                     .
        past expertences     as a guide, usually a county budget can be rea-
        sonably, accurately     compiled.      The amount of tax collections
        is not difficult to estimate     correctly    but fees of office charged
        for services    rendered   the publiccan      not always be as accurately
        estimated.     The demands for expenditures           out of the Officers
        Salary Fund of a county are contingent, to a degree, .on the vol-
        ume of services     rendered     the public as reflected      in the fee reve-
        nues,   Article   689a-11 outlines the conditions under which a
        county budget may be amended.             Would the collection      of fees for
        the benefit of the Officers      Salary Fund in excess of the amount
        estimated    under the budget, become available           for expenditures
        beyond those’antic.ipated      in the budget but necessary         in connec-
        tion with the efficient    operation     of the departments      in the Offi-
         cers Salary Fund Group ?
    Honorable   Tom A~. Craven,    Page   2, O-5184



                   ?.War conditions have brought about a number of changes
           in our business     economy--    some of which might have been anti-
           cipated several     months ago and others which reasonably          diligent
           thought might have not revealed.         Necessary    living costs in some
           areas have ad,vanced more than might have been expected.                This
           is particularly    true in counties   such as McLennan       County having
           large increases      in population due to war activities,      Competition
           affects labor and salary      schedules.    This does not necessarily
           mean direct competition        with governmental     and defense agencies
           but as the surplus man-power         has been cons.umed ~by industry or
           otherwise,    operations    outside those defined as essential     to the
           war effort must compete for the services           of those yet available
           for such operations.       Because   of these conditions,    the depart-
           mental officials     of McLennan    County contend they will be unable
           to efficiently carry     out the duties and functions of their respec-
           tive departments      during the remainder      of 194.3 without an increase
           in salary allotments      above those set out in the 1943 county budget.
                         ,.
                   “Would the contention of these departmental officials,   if sub-         ‘.   ..
.- _..,    stantiated by them, justify an emergency    amendment to the county
           budget under the provisions   for making such amendments       as out-
           lined in article 689a- 117 *

                   On April  13, 1943~. we wrote you requesting   certain additional in-
     formation   relative to your request and in compliance    with our request for addi-
     tional information   on April 21, 1943, you wrote us as follows:

                   “In reply. to your letter of April  13th asking for additional
           information     relative to opinion request o-51.84, I shall make a few
           general    observations   followed by more specific    information.

                  “Supplement.ing    the information   given in paragraph     1 of my
           letter of. April 3rd, I wish to add that not only this year but frequently
           we have situations    arise under which conditions have changed sfnce’
           budget making time which require         an expansion   of operations   in a
           given office beyond what was anticipated,        or could have been antici-
           pated, at the time the budget was made, and, in many instances,            the
           expansion of ope,rations brings in additional revenues.         In most of
           these instances,   the regular    working personnel    as anticipated    under
           the budget is unable to efficiently     handle the work under the expanded
Honorable      Tom    A. Craven,    Page   3, O-5184




          operation~.,;As.anexa.mple,        .of,~one of these situations,    reference
          might be made to the .fact that some twelve ,months ago the demand
          for birth certificates     from the County Clerk multipliedseveral
          times,:  In McLennan      County this, additional work required           two extra
,. ..
          dep~uties, to handle,tbe    situation efficiently.     The increased      ,work pro-
          duced revenues      not anticipated     under the budget.. Another situation
         .would ,be a large: increase      in the number of poll taxes collected., :
          The fees received      by a county for collecting       poll-taxesdo      not   _
          amount to enough to cover the expense of such collections                 and sub-
          sequent handling. of the poll lists.        These examples       are, submitted
          mshow     that we.are    sometimes      .confronted with a propos~ition of,
          spending Morse fork deputy~ hire than was anticipated             under the budget
           but in spending that additional,amount,          .increased   revenues. inthe,
            same-,,off~ice are produced.        While on the other hand, we frequently
           have an expanded operation which does-not produce sufficie~nt addi-
            tional revenues      to, cover the ,additional. co& of the expansion.      Again,
           we might have a: s.urplus of increased~ re~venues in one. offices of the
        _.. Officers’.Salary      Group and a-deficit    caused by a necessary      e.xp.anded
            program      in another. office ~of’the same-group.’      When application    is
            ,made’.by ‘a:department       head for additional deputies to <meet some
            unexpected      operation,. the commissioners’       cour.t, almot invariably,
            calls attention to the fact that the expenditure         would overdraw     the
          ~budget., :. ::.:i-. ~.:? ::     : ~.

                   “Although under the application       we wish to make at’the present
        ~...time,,.the.two questions     asked in my letter of April 3rd are closely
           r.elated,. fundamentally,...they   are separate   questions.. .: ~..         ~.
         ~.;.                                         ,.
                  “AS in most defense areas, war,. conditions Ihave,;brought about I.,:
           conditions which I think are well known to you and which exist now
          in McLennan    County under which it .is.difficult,     if not .almost imposs-
          ible; to retain clerical    personnel   at the salary schedules     of,budget .~. :..
          making time, July 1942. I am not so sure but what the commissionersi
          court could have, by diligent effort, .foreseen this condition, but the
          fact remains    that provision    was not made bindthe budget,for      1,943 to
        .-meet such increased      requirements:      This question is whether ornot
          a. commissioners*;    court could legally~ amend. a budget under such con-
          ditions to meet.,increas.ed     deputy hire and justify such amendment
          under the emergency       provision   as outlined in article   689A-ll ?
 Honorable        Tom A.     Craven,   Page   4. O-5184




                      “The present salaries       paid county officials    ar~e set at
             the maximum        allowed by law and we, of course, wish $0 make
             no application      of any theory that might be set out in your opip
             ion to the compensation        of the,se officials.    We are familiar
             with the maximum          compensation    that can.be paid deputies of
             county officials      and know that under n,o circumstances          could
        .
            ‘salaries     to such deputies be raised legally beyond such maxi-
             mums.,     ,Incidentally,   however,   the salaries    of deputies of
             McLennan       County officials,    at present,    are substantially   below
             the maximums         allowe,d under the statutes..

                       ~-one question is, would increased         revenues    beyond that
               anticipated   in the budge~t justify the use of dlscretlon        by a corn.-
               miss.ioners*.cotirt     ln allowing   increased   expenditures      beyond
               that anticipated    in. the budget to pay deputy hire, within the maxi:
               mums allowed under the statutes necessary              to efficiently   operate
               .a county department,       ?,ssuming the official head of the county
                office 1s able to convince the court that his department             cannot
                operate efficiently     without ‘such increased ~expenditures ? The
            . . other ,question 1.8whethe.r or not when a county is unable to
            .“~ retain experienced      personnel    at the salary schedule set up in
                a bu.dget. would an emergency         amendment to the budget be justi-
                fied under the provisions       of article 689A-1~1 7”

                   Article     689a-9, Vernon’s   Annotated         Civil    Statutes,    provides
      for the preparation      of the county budget.

                   A.rticle 689a-10, Vernon’s   Annotated Civil Statutes, prov1de.s
      that when the budg.et f,or the county has been prepared   and completed   a
      copy of the same shall be filed,with.the   clerk of the county court, avail-
      able for the inspec,tion of any taxpayer.

                   Article      689a.T11. Ve,rnon’s     Annotated    Civtl    Statutes,    reads
      in part as follows:

                     YThe comm~issioners’    court in each county shall each year
              provide for a public hearing on the county budget.      . . which hear-
              ing shall take place on some date t,o be named by the.commission-
              ers*,court  subsequent  to August 15 and prior to the levy of taxes
              by said commissioners~”    court.   Public notice shall be given that




2..
   ‘; J.   .’ “,




            Honorable         Tom A,. Craven,     Page   5, O-5184




                         on &id date of hearing the budget as prepared        by the county judge
                         will be considered    by the commissioners’     court.  Said notice shall
                         name the hour, the date and the place where the hearing shall be
                         conducted, any taxpayer     of such county shall have the right to be
                         present and participate    in said hearing,   At the conclusion     of the
                    .
                         hearing,  the budget as prepared     by the county judge shall be acted
                         upon by the commissioners’       court.  The court shall have authority
                         to m~ake such changes in the budget as in their judgment the law
                         warrants   and the interest of the taxpayers     demand.    When the bud-
                         get has been finally approved     by the commissioners’      court the bud’
                         get as approved    by the court shall be filed with the clerk of the
                         county court, ,ar+dtaxes levied, only in accordance      therewith,   and
                         no expenditure   of the funds of the county shall thereafter      be made except
                         in strirt compliance    with the budget as adopted by the court.        Ex-
                           cept that emergency      expenditures,    and cas,es of gr.ave public neces-
                           sity, to meet unusual and unforese,en conditions which could not, by
                           reasonable   diligent?.ho.Fght and attention have been included in the
                           original  budget, may from time to tjme be authorized          by the court
_ .-.                   ;: as amendment      to the original,budget.     In all cases where such amend-
                           ment to the original    budget is made, a copy of the order of the court
                                                                                                                      .I
                           amending the budget s,hall be filed with the clerk of the county court
                           and attached to the budget originally       adopted.”

                                ,Article   689a-20,   Vernon’s   Annotated   Civil   Statutes,   provides   as-
              follows:
               .:
                                 YNothing contained in this Act shall be construed      as preclud-               i
                          ing the Legislature    from making changes in the budget for State
                          purposes   or prevent the County Commissioners’         Court from making
                          changes in the budget for county purposes       or prevent the governing
                          body from making changes in th& budget for school purposes;           and
                          the duties required    by virtue of this Act bf State, County, City and
                          Schbol Office.rs   or Representatives    shall be performed   f~or the com-
                          pensation now provided by law to be paid said officers,       rkspectively.”

                            In construing  the foregoing provision   (Article 689a-20)  this de?;.                    -
               partme&   has repeatedly   held ‘we are of the opinion, upon considering     the act                        ’
               as a whole, that Section 20, quoted above, does not authorize     the commission-
               ers* court to make changes so as to increase     the amount of the budget after
 Honorable      Tom    4.   Craven,    Page    6, O-5184
                                                 ,’



   its final adoption except in cases of emergency.                 . .~. We do not think it
   authorizes     the commissionerss        court to ~increase the budget after its
   adoption.     To so hold, would destroy the very purpose of the Act..”                      (See
   our opinion No. O-,1053 and an opinion written by Honorable                        Joe J. Alsup,
   Assistant    Attorney       General  dated October 3, 1935.)
      c                    ,.~ “.                                        :.
                    It ins,stated in our opin&        Nb.. O-3146:           ,,
                           .~                      ,:..; .
                    ‘The only way the county budget may ,be amended’after
           its adoption is in strict com~pliance; with the above statutory
           provis.ion.       This department     has consistently        ruled that whether
           a .situation. is one which ,can be cla.ssified as an emergency                   under
           the, budget laws so as to perm,it the commissioners’                    cqurt to
:.         amend      the,  budget,  is a question     of  fact  primarily      to  be passed
           upon~by,the~commissioners’            court.      See Opinion O-07, o-1022,
           an~d O-1728, Annual Opinion Reports                of the Attorney General         for
            1939, pages 2; 274 and 455, respectively.
                   . ..~“Y’                                           .
                 ,,.?Tl-+e Quoted statutory~ provision  provides    that no expendi-
      . ,1’ture of the funds of the county shall be made after the budget is
           finally apprqyed and filed withlthe clerks except in strict compli-
           ante w.,ith,the,adopted budget.     An exception to the foregoing      is
           made, however.       as to ‘emergency    expenditures.“”

                  As we understand   your letters,   as,quoted above, you,desire                       our
  opinion    on the questions presented   in the last paragraph   of your second                      let-
  ter.

                Under the facts stated and in view of the foregoing      authorities,
  you are advised that it is the opinion of this department      that the c~ommission-
  ers’ court of the county is unauthorized    to make any expenditures,     of the funds
  of the county, except in strict~ compliance    with the budget, except emergency
  expenditures   in case of grave public necessity,     to meet unusual and unforeseen
  conditions which could not, by reasonable      diligent thought and attention, have
  been included in the original   budget.  Suc.h emergency     expenditures   must be
  made in compliance     with the proper amendment to the budget by the commis-
  sioners’ court.    Whether  or not the situations presente,d in your inquiry are
  such as can be classified    as a grave public necessity    requiring   emergency
  expenditures   under the budget law, so,a,s to permit the commissioners’         court
     Honorable   Tom A. Craven,   Page       7, O-5184




     to amend the budget, is a question          of faci   primarily      to be passed   upon by
     the commisstoners”   court.


                                                             Yours     very    truly

                                                      ATTORNEYGENERALOFTEXAS




                                                                 Ardell       Williams
                                                                       Assistant
     AW:db




     ATTORNEYGENERALdFTEXAS
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