                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                    June 9,2003



The Honorable Bruce Isaacks                                      Opinion No. GA-008 1
Denton County Criminal District Attorney
1450 East McKinney, Suite 3 100                                  Re: Budget amendment           process in Denton
P.O. Box 2850                                                    County (RQ-0013-GA)
Denton, Texas 76202

Dear Mr. Isaacks:

        You present two related questions about the process of amending the Denton County budget.’
First, you ask whether it is necessary, in amending an original county budget to create “a new
salaried position that does not result in a new line item,” for the commissioners court to act under
the “emergency expenditure” provision of section 111.070(b) of the Local Government Code, which
you say governs Denton County.* Second, you ask whether, having created a position in the sheriffs
department and identified the funding for that position, the Denton County commissioners court has
a ministerial duty to fund the position and approve the appointment.

         As we understand the situation giving rise to your questions, in May 2002, upon the request
of the Denton County sheriff, the commissioners court approved the creation of a homeland security
coordinator position in the sheriffs office. At this time, the commissioners court determined that
funding for the position would come from a budget line dedicated to unappropriated contingencies.
In June 2002, the sheriff submitted a proposed order to the commissioners court for approval of his
appointment of a candidate to the position. The commissioners court, however, declined to act upon
the proposed order. In part, it appears the commissioners court declined because of a concern that
the prior budget amendment had been inconsistent with the requirements of section 111.070 of the
Local Government Code.

         Section 111.070 reads:

                  (a) The commissioners court may spend county funds only in strict
                  compliance with the budget, except as provided by this section.


         ‘Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable     Greg Abbott,
Texas Attorney General (Jan. 17, 2003) (on file with Opinion Committee) [hereinafter Request Letter].

          *Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable John Comyn,
Texas Attorney General, at 1 (June 26,2002) (on file with Opinion Committee) (attached to Request Letter) [hereinafter
Letter of June 26,2002-j.
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                (b) The commissioners        court may authorize an emergency
                expenditure as an amendment to the original budget only in a case 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. If the court amends
                the original budget to meet an emergency, the court shall file a copy
                of its order amending the budget with the county clerk and the clerk
                shall attach the copy to the original budget.

                (c) The commissioners    court by order may amend the budget to
                transfer an amount budgeted for one item to another budgeted item
                without authorizing an emergency expenditure.

TEX. Lot. GOV’T CODE ANN. 4 111.070 (Vernon          1999) (emphasis added).

        By its terms, subsection (c) permits the reallocation of budgeted funds from one item to
another without the requirements of the emergency expenditure provisions of subsection (b). As the
El Paso court of appeals noted in Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.-El Paso 1993,
no writ), a commissioners court has “general authority to effect the transfer of surplus funds” from
one account to another. Hooten, 863 S.W.2d at 529. When a commissioners court simply transfers
these amounts, under the language of subsection (c), it is not required to find a grave public necessity
that was reasonably unforeseeable in the original budget process.

         As we understand it, particular salaries such as that of the homeland security coordinator are
not line items in Denton County’s budget, but are rather “slots” within a line item. Letter of June
26,2002, supra note 2, at 2. Further, when the commissioners court created the position in question,
it ordered “that the funding was to come from the Unappropriated Contingency line item, but did not
specify an amount for said funding.” Id. Such an amendment, given that it contemplated only a
transfer of budgeted funds, falls within section 111.070(c).

        The appointment of a new employee by a county officer, such as a sheriff, is governed by
subchapter A of chapter 15 1 of the Local Government Code. Section 15 1.OOl commands an officer
“who requires the services of deputies, assistants, or clerks” to apply to the commissioners court for
such appointment in a sworn application detailing the number of employees required, the titles of
their proposed positions, and the proposed salaries. TEX. Lot. GOV’T CODE ANN. Ej 151.OOl
(Vernon 1999). Such an appointment is then within the authority of the commissioners court, which
“shall determine the number of employees that may be appointed and shall authorize their
appointment .” Id. 8 15 1.002. After the commissioners court has issued such an order, “the officer
applying for the employees may appoint them.” Id. 5 15 1.003. At that point, neither the
commissioners court nor any member thereof may “attempt to influence the appointment of any
person.” Id. 5 151.004.

       The courts and this office have frequently had occasion to analyze the relative authority of
commissioners   courts and sheriffs as independent constitutional officers with respect to the
The Honorable Bruce Isaacks      - Page 3        (GA-008 1)




budgeting for and staffing of the sheriffs office. See Garcia v. Reeves County, 32 F.3rd 200 (5th
Cir. 1994); Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.-Austin 1997, writ denied); Comm ‘rs Ct.
of Shelby County v. Ross, 809 S.W.2d 754 (Tex. App.-Tyler 1991, no writ); Renken v. Harris
County, 808 S.W.2d 222 (Tex. App.-Houston [ 14th Dist.] 1991, no writ); see also Tex. Att’y Gen.
Op. No. JC-0214 (2000). The general division of authority is clear: “The commissioners               court
performs a legislative function when it creates the budget for the county’s offices and departments.
This budgetary power carries with it broad discretion in making budgetary decisions.” Hooten, 863
S.W.2d at 528. On the other hand, Texas sheriffs have “virtually unbridled authority in choosing
their personnel, restricted only by certain basic constitutional considerations. . . . The commissioners
court may limit the number of deputies authorized, but it has no power over naming the individuals
to be appointed.” Comm ‘rs Ct. of Shelby County, 809 S.W.2d at 756. As this office summarized
the matter in Attorney General Opinion JC-02 14, “the principal power of the commissioners court
with respect to other county officers like the sheriff is the power of the purse strings.” Tex. Att’y
Gen. Op. No. JC-0214 (2000) at 2.

          A commissioners court has the authority to determine, in any budget year, the resources to
be distributed to the sheriff. It may, accordingly, take a different view than does the sheriff about
the necessity for a particular staff position. In this case, had the commissioners court disagreed with
the sheriff at the time of the requested authorization for the homeland security coordinator position,
the sheriff would have had little recourse, given that such a decision could be challenged only for
 abuse of discretion. “The district court’s authority extends only to enjoin illegal expenditures and
to situations where the commissioners abuse their discretion. It has no authority to substitute its own
judgment for that of these elected officials as to the particular expenditures that should be made.”
 Weber v. City of Sachse, 591 S.W.2d 563,566 (Tex. App.-Dallas 1979, writ dism’d). Similarly, in
another budget year, the commissioners court might revisit the issue of the position’s necessity. But
having authorized the appointment, their control over the appointment for the budget year in question
is at an end. Pursuant to section 15 1.003 of the Local Government Code, the power of appointment
thereupon belongs entirely to the sheriff. Any further interference with that power of appointment
would invade that “sphere of authority, which is delegated to [the sheriffJ by the Constitution and
laws, within which another officer may not interfere or usurp.” Renken, 808 S.W.2d at 226; accord
Abbott, 946 S.W.2d at 517; Tex. Att’y Gen. Op. No. JC-0214 (2000) at 3, 5.
The Honorable   Bruce Isaacks - Page 4         (GA-008 1)




                                        SUMMARY

                        A commissioners court that amends its budget in midyear to
                authorize a new position in the sheriffs office by transferring surplus
                funds from one budget item to another need not authorize an
                emergency expenditure, but may proceed under the terms of section
                111.070(c) of the Local Government Code. Having authorized such
                an appointment pursuant to sections 15 1.OOl and 15 1.002 of the
                Local Government Code, a commissioners court has ceded authority
                over that position to the appointing officer for the remainder of the
                budget year in question.

                                               Very truly yours,




                                               Attom@neral         of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
