              THEATTORNEYGENERAL
                      OF TEXAS
                         AUSTIN al.'lkxAS
GROVER SELLERS




  Honorable John R. Shook
  Criminal District Attorney
  Bexar County
  San Antonio, Texas
   Attention:    Mr. L.,J. Gittlnger
                 First Assistant
  Dear Sir:                    Opinion NO. o-6819
                               Re: Adoption of special budget'under
                                    R.B, 240, Acts 49th Legls.; is-
                                    suance of time warrants'for cur-
                                    rent expenses'of county; and ln-
                                    crease In salaries of county em-
                                    ployees
             We acknowledge receipt of your opinion request of Sep-
   tember 11, 1945, reading In part as follows:          .
             "The 49th Legislature of Texas, at Its regular
       session, passed S.B. No. 246, effectingcounties of
       not less than 300,000 nor more than 500,000 popula-
       tion, which Act under your Opinion No. O-6721, ap-
       proved July 24,'1945, became effective June 2, 1945.
            "Said Legislature also passed H.B. No. 240,
      under which Act the Auditor of Bexar County became
      the Budget Officer of said County Instead of the
      County Judge.
            "Bexar County has been operating its Budget in
      compliance with the provisions~of Article 689a, ex-
      cept that it has used the fiscal year from August 1
      to July 31, rather than the calendar year as its Bud-
      get year. In 1940, this office in response to a re-
      quest for an opinion from The"Honorable Charles W.
      Anderson, County Judge of Bexar County, ruled that the
      fiscal year und-erthe terms 'ofArticle 68% should
      begin on the 1st day of January and end on the 31st
      day of the following December of each succeeding
      year, The Attorney General of the State of Texas had,
      before that time, ruled that the calendar year
      should be the fiscal year and the Budget year of
      counties of a population bracket of Bexar County. In
Han, John R. Shook, page 2        O-6819


    spite of these rulings, however, the Budgets were
    made for the fiscal year, August 3 to July 31, as
    above set out.
         "On account of the provisions of H.B. No:
   240 and the existing conditions in Bexar County,-
   a hiatus was created from the period of August 1,
   1945 to January 1, 1946,'in which period no Budget
   existed for Bexar County, the Budgetunder which
   it had been operating ending July 31, 1945. The
   matter having been presented to us, we ruled that
   it was the duty of the County Jud,geof Bexar County
   to make an amended'or supplemental budget to the
   1944-1945 Budget, as~we doubted the authorlty'of
   the Auditor to make a Budget, except for the cal-
   endar year of 1946, and subsequent calendar year,
   under the provisions of said H&B. No. 240.. We
   also held that the ad valorem taxes for 1945 col-
   lected during the months of October, November and
   December 1945, should be held and used for the
   purpose of creating a pay-as-you-go Budget for
   1946, in accordance with the provisions of H.B.
   No. 240; a copy of the above mentioned opinion Is
   created hereto,
         "In accordance with such opinions, the County
   Judge has prepared an amended or supplemental bud-
   get In order that the duties and functions of Bexar
   County and its offfces may be carried on during said
   fnterlm period.
          "In passing on the provisions of S,B. No, 246,
    this office held that the mandatory pay Increase pro-
    vided in said Bill applied only to the officers named
    in said Act and their employees, deputies and assist-
    ants. A copy of this opinion Is attached hereto for
    your consfderation.
         "Again acting upon said opinion and doubtless
   because it was felt that a great many employees of
   Bexar County, equally deserving of increases in sal-
        had been denied such increases because of S.B.
   :?'246, the Commissioners' Court of Bexar County
   provided pay increase for all employees which were
   set up in the lnterfm budget prepared by the County
   Judge. In order to finance said pay Increases and
   other expenses of Bexar County, said Commissioners'
   Court voted to fssue Time Warrants not to exceed the
   amount of $365,OOO,OO, This budget substantially
   provides for Increases In salary for employees, who
Hon. John R. Shook, page 3        O-6819


   were not included under the provisions of S.B. No.
   246, and contains, in addition, a new budget object
   which was not Included In the 1944-1945 Budget.
         "The anticipated revenue In said amended or
   supplemental budget, together with the,unexpended
   balance In the General Fund for 1944-1945,being
   Insufficient to pay the anticipated expenses of the
   County during the five month period, from August 1,
   1945 to January 1, 1946, by $175,000.00, the Com-
   missioners' Court voted to issue said $365,000.00 in
   Time Warrants to be issued only, If, as and when
   needed, the receipts of the sale of such Time Warrants
   being set up in the Budget as anticipated revenue.
         "Bexar County has a Special Hospital Tax, under
   the provisions of which the people of Bexar County, by
   special election, voted'to levy lOq?on the $100.00
   valuation to establish and maintain a county hospftal.
   This hospital tax Is levied inaddition to such part
   of the annual 259!constitutional General Fund levy as
   the Commissioners"Court deems necessary and the
   total of the General Fund levy and Special Hospital
   levy exceeds 25d per $100.00 valuation in the 1944-
   1945 Budget.
         "While I do not have the opinion before me, it is
   my impression that the Attorney General has previously
   held that said lOq!levy was not constitutional.
         "At least a portion of the anticipated receipts
   from the sale of the Time Warrants was set aside as
   receipts or revenues for said county hospital and was
   so set up on the Interim budget as a part of the an
   ticlpated receipts for said hospital. Another portion
   of such anticipated receipts from the issuance of
   such Time Warrants was set up as anticipated receipts
   accruing to the Jury Fund. Another portion of such
   anticipated receipts was set up on saLd Budget as
   anticipated receipts or'revenue for the City-County
   T.B. Control Board which latter expenditure was not
   Included in the 1944-1945 Budget, but which Board was
   created by Act of the 49th Legislature, known as S.B.
   No. 339.
         "At the creation of said Interim budget, this
   office verbally ad,vised'theCounty Judge and the
   Commissioners' Court that some sort'of measuring
   stick should be adopted in making said Budget, and
   suggested that the 1944-1945 Budget be divided by
                                                            .




Hon. John R. Shook, page 4        O-6819


    12 and that this amount be mltiplled by the number
    of months provided for in said interim budget -----
    in other words that 5/l2 of the 1944-1945 Budget be
    set un in the interim budget to cover the anticipated
    expenses during the pe'rlddfrom August 1; 1945 to
    January I, 1946. In many instances in said Budget,
    this amount has been exceeded not only'for the
    offices named in 5. B. No, 246, but also for other
    offices and institutions not affected by S.B. No.
    246, as we construe it.
          "In the light of the foregoing, we now desire
    to ask the following questions:
         "(1) Can Time Warrants be authorized and
         issued under such circumstances before a
         debt has actually been’createti. In other
         words, is it not necessary that script be
         first issued and registered and that such
         Time Warrants be then used to retire said
         script?
          "(2) Can Time Warrants be issued'to be pay-
          able out of the General Fund for a ,hospital
          created and to be maintained out of a Spe-
          cial Fund Levy when the'total of the Gener-
          al Fund Levy and Hospital Levy exceed the
          257?levy provided by the Constitution?
          "(3) Can Time Warrants be issued, payable
          out of the General Fund proceeds of which
          Time Warrants will be transferred to the
          constitutional Jury Fund?
         "(4) Can Time Warrants be issued out of t,he
         General Fund, the revenue of which will be
         transferred to an object OP purpose not in-
         cluded in the 1944-1945 Budget, but whfch
         object or purpose was set up in the amended
         OP supplemental budget, such new budget pur-
         pose being created by statute passed after
         the adoption of the 1944-1945 Budget and
         before the adoption of the interim budget?
          "(5) Can the Commissioners' Court, in said
          amended OP supplemental Budget, increase the
          salaries of employees, assistants and depu-
          ties of officers not named in S.B. No. 246,
          for the'interim period from Augustl, 1945,
          to January 1, 1946, OP should the appropria-
Hon. John R. Shook, page 5          O-6819


          tlons provided in said interim budget be
          limited to 5/l2 of the amounts set up In the
          1944-1945 Budget?

          “(6)   Can the Commissioners"Court In said
          Interim budget increase the appropriations
          for the officers provided'in S.B. No. 246,
          beyond 5/l2 of the 1944-1945 Budget, plus
          15$, such 15% to be based on the~~payroll
          of,the particular office as of March 1,
          1945, under said S. B. No. 2461
          II. . . . .
          We will answer your questions in the order In which
they are asked.
                               I.
          We answer the first part of your first ques!ion "No".
We answer the second part of your first questlon Yes .
           The issuance of time warrants is governed by the Bond
and Warrant Law of 1931. Article 2368, V.A.C.S.' That statute
defines'time warrants as "any warrant issued by a city or county
not payable'out of current funds". In orderto create such an
obligation against the general fund of the county, the commis-.
sioners' court must be expressly or im liedly authorized by statute
to do so. Adams vs. McGill, 146 S.W. P2d) 332, error refused;
Bexar County vs. Mann, 138 Tex. 99, 157 S.W. (2d) 134. In the
latter case, the'authority tb Issue bonds and allocate a portion
of the 25g!General~Fund Tax'as a sinking fund, for the,purpose.
of buying voting machines was authorized by Art. 2997a, S'ec.6,
V.A.C.S. This statute   expressly provldes that the bond moneys
are "to be used for this purpose and no other." There is not
only no statute authorizing the issuance of bonds OP time war-
rants for the purpose of paying current operating expenses but
the Bond and Warrant Law (Art. 2 68a, V.A.C.S.) and the "pay as
YOU go " budget law (H.B. No. 2407 contain provisions which are
inconsistent with such a practice. This budget law does not even
authorize "emergency expenditures in case of grave public  neces-
sity” as does Art. 6aga-11, V.A.C.S. It expressly provides that
the "amounts budgeted for current expenditures from the various
'fundsof the county shall not exceed the balance in said funds
as of January lst, plus the anticipated revenue for the current
year for which the budget is made, as estimated by the county
auditor". If this forrrmlais followed, there can be no necessity
for and, therefore, no implied authority for a mortgage on the
future revenues of the county to pay current operating expenses.
Adams-vs. McGill 146 S.W. (2d) 332, error refused; For~emanvs.
Gooch, 184 S.W. t2d) 481, error refused, want of merit.
Hon. John R. Shook, page 6         O-6819


          The supposed necessity for Issuing time warrants men-
tioned in your letter is probably predicated on your opinion
dated June 15, 1945,'to Hon.'Edgar Garvey,    xar County~Auditor,
in which you .holdthat t,he"current collect3% s made from the
tax'levy in October';1945, and collected.durlng the months of
October,^November, and December, 1945, have t'obe set aside'for
the January Budget", ,and-cannot be used'for paying obligatfons-
arising under the 3.945~
                       budget". It is our vFew~that all taxes
collected from the 1945 1evy"are to be considered as current
revenue for the purpose of paying the'obligations incurredunder
the 1945 budget. You are correct in advising the Countg'~Judge,
Charles W'.Anderson, in your letter of July 13, 1945, that "the
fiscal year under the terms of Art. 68% should begin on the 1st
day of January and end on the 31st day of the following December
of each succeeding year". This.department made that ruling in
Its Opinion No. O-2324, which was issued onMay 20, 1940. Under
Article 68ga-g-ii,V.A.C.S., the budget which is prepared in"'
July.and adopted in August seems to be tied to the tax levy made
in August for taxes which are to become due and payable on Octo-
ber 1st. This is made manifest by that part of Article 68ga-ii
reading as follows:
          "When the budget has been finally approved by
    the Commissioners' Court, the budget, as approved
    by the Court shallbe 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."
          The budget referred to here is the budget for the fol-
lowing calendar year. The taxes levied In August on the basis
of the August budget are taxes which In contemplation of Article
68ga are to be applied to the expendituresfor the following
calendar year. This practice of levying taxesin August for use
Ln thenfollowing calendar year worked well in practice until the
Legislature passed Article 7255b, V.A.C.S., allowing a discount
on ad valorem taxes paid in advance. Prior to this law,~most of
the taxes levied in August were paid In January of the following
year, immediately before they became delinquent on February lst,
Article 7336, V.A.C.S. After enactment of Article 7255b, the
bulk of taxes levied in August are paid in Oc~tober,November
and December following; in order to take advantage of the dis-
count. If Article 6&a, V.A.C.S, was the budget law under which
Bexar County Is presently operating, we would be inclined to
agree with your opinion holding that taxes collected in October;
November and December, 1945, should be impounded for use in 1946.
          H.B'.240, however, is now the budget law applicable to
Bexar County and It became effective April'9, 194.5. It expressly
repeals "all laws and parts of laws in conflict" with it. It au-
  .




Hon. John R. Shook, page 7           O-6819


thorlzes the county auditor to prepare a budget in January "to
cover all proposed expenditures of the County Government for the
current fiscal and calendar year". This new budget law does not
tie the budget to any particular tax levy. In this respect;it
is in conflict with the general county,budget law (Art. 68ga,
V.A.C.S.) and therefore repeals it. When your Commissioners'
Court levied the taxes which became due and payable October lst,
it was operating under H.B. 240 and,not under Art. 6’8ga,g-11,
V.A.C.S. It is true that H.B. 240 seems to contemplate that the
countI& Included in the Act shall start ona 'pay as you go"
basis as of January 1, 1946, but there is nothing in the Act
which ties the 1946 budget to the 1945 taxes'or gives any authority
for impounding the taxes paLd between October 1 and December 31
for use in 1946. The 1946 budget will  be based on "the balances
in said funds as of January 1, plus the anticipated revenue for
the current year for which the budget is made, as estimated by
the county auditor." The "anticipated revenue for the'current
year for which the budget is made means 1946 revernzeand not
1945 revenue.                                                  ,..
          If you will use your 1945 taxes to meet the obligations
Incurred during the calendar year 1945, evidently sufficient
funds to pay all obligations incurred in 1945, which are properly
chargeable to current funds, will be available.
                                  II.
           We answer your second question "No".
          You are correct In saying that this office has prevl-
ously held that the lO# hospital levy was unconstitutional. We
held this in our Opinion No. O-2599 which was issued to Hon. E.
G. Garveg, County Auditor of Bexar County, on September 6, 1940:
The reason for this hol~dingwas that Section 1 of Article 4437a,
V.A.C.S. was a special or local law, the enactment of which was
prohibited by Section 56 of Article 3 of the Texas Constitution.
The last Legislature, however, amended Article 4437a, V.A.C.S.,
so that it now applies to "all counties in Texas having a popu-
lation of 200,000 or more inhabitants as shown by the last pre-
ceding Federal Census, in which are established hospitals jointly
owned and operated by any city and county in which said hospital
is located. . D . *" Sec. 3 of Art.  4437a was also amended to
read as follows:
            “Sec. 3. A direct tax of not over 204 on the
      valuation of $100.00 may be authorized and levied
      by the Commissioners' Court of such county for the
      purpose of erecting buildings or other Improvements
      and for operating and malntaining such hospital; pro-
      vided that all such levy of taxes shall be submitted
                                                        .   .   _




Hon. John R. Shook, page 8          O-6819


    to the qualified taxpaying vote& of the'countg, and
    a Mjorltg vote shall be necessary to levy the".tax.
    Suticbssiveelections may be held to authoriie adai-
    tlonal taxes hereunder proviaea the total tax Shall'
    not exceed the maximum of 209?per $100.00 valuation;
    as hereinabove provided." See 3.B; Non.339; Ch."'295,
    Acts @tKLegls., Reg. Sess., 1945, Vernon's Texas
    Session Laws.
            According to a ce??tlficate'~'of~electfofi
                                                    which 18 diifile
in the office of the Secretary of"State,,the qualifted taxpaying,'
voters of Bexar County at a special electlon~held,on July 25; 1945,
authorizea the Commissioners' Court to levy the 2O#'taX o%the'
$100.00 v&luation for construction ana maintenance'of hospitals.
This 204 tax authorizatioilis In lieu of the 10 eta% tihich.the-
Legislature   undertook to authorize in Articles e 437a and &437b,
V.A.C.S.
          We have also learned from the Secretary of State that
since the special election on July 25, 1945, you held another
special election in Bexar County on August 25.,1945, for the pur-
pose of reallocating the constitutional tax rates as authorized~ '
by Article 8, Sec. 9 of the Texas Constitution. At this election,
the majority votes were "cast for the proposition authorlzlhg
the Commissioners' Court of Bexar County, Texas, to reallodte
the Etghtg Cents (80$!)constitutional maxiwm county tax upon
the One Hundred Dollars ($100) valuation authorized by SectFon 9
of Article 8 cf the Constitutionof the State of Texas by changing
the rate provided for county urposes from Twenty-five'cents
(25#) to Forty-six Cents (46#p on the One Hundred Dollars($lOO)
valuation; by authorizing for Poaas and bridges Fifteen Cents
(15$)'on the One Hundred Dollars ($100) valuation; by changing
the rate to pay jurors from Fifteen Cents (15#) to Five Cents
(54) on the One Hundred Dollars ($100) valuation and by changing
the rate for the erection of public bulldings, streets, sewers,
water works and other permanent im rovements from Twenty-five
Cents (25d) to Fourteen Cents (144P on the One Hundred Dollars
($100) valuation."
          We are advised that an order has been entered by the
Commissloners' Court levying taxes according to the new rates.
The General Fund levy is, therefore, now 46q!instead of 256 on.
the $100 valuation.
                             III.
          We answer your 3rd question "No". Carroll vs. Williams,
109 Texas, 155, 202 S.W. 504, cited by you in your letter.
                             Iv.
.   . . _




    Hon. John R. Shook, page 9               O-6819


              We answer your 4th question "No" for the reason that
    time warrants cannot be issued under the circumstances mentioned
    in your letter.
                                        V.
              (a) We aiiswerthe first part of your 5th question
    "Yes"; provided, that the salaries of employees not named in
    Senate Bill 246 shall not be Increased beyond the mt%x?.mrn
    salaries now provid@d by statute forksuch positions; and pro-
    vided that such salary fncreases operate from the date of'the
    order entered by the Commissioners,'-Court. If a particular
    employtieIs not covered by S.B'.246, and he is getting the max-
    imum salary now provided by statute  for the position he holds,'
    he could not receive an increase from'the Commissioners' Court.
    If he is not being paid the maxlrmm salary provide8 for by law
    for the position he holds; he can receive an increase in salary
    Up to such maximum salary, if the Commissioners' Court enters
    8n or&er for such Increase, pr'oviaec"'theIncrease does not ex-
    teed 15% based bn the March, 1945, payroll for such position.
    Before the passage of S.B. 246 f the County Auditor of McLennan
    County asked us this question:
                  "The other question i s whether or not when a
            'countyis unable to retain experienced personnel
            at the salary'schedule set up in a budget, would
            an emergency amendment to the budget be justified
            under the provisions of Art. 68%-n?"
                  In our Opinion No. Q-5184, we answered the question as
     follows:
                  "Whether or not the situations presented in
            godr inquiry are such as can be classified as a
            grave public necessity requiring emergency expen-
            ditureti.~urider
                          the budget law so as to permit the
            commi.ssioners'court to amen&the budget, is a
            question of fact primarily to be passed upon by
            the commissioners' court.
               Since that opinion was issued on May 8, 1943, the Leg-
    islature has provided in S.B. 246 for a 15% pay Increase for cer-
    tain county employees and authorized the budget to be amended for
    that purpose.    In Sec. 13 of S.B. 246, the Legislature found that
    "the further fact that Increased living cost and taxes have
    greatly  lndreased the living expenses of the employees, deputies
    ana asslstants'of the county officers named, so that said officers
    are,hairifig a1fficulty in keeping adequate staffs of trained person;
    nel, creates an emergency and,an Imperative public necessity, etd.
    If the Legislature found that an emergency eXIsted with reference
    to the employees named in the Act, we are unable to say that the
                                                        . . .   _




Hon. John R. Shook, page 10          Q-6819


Commissioners' Court of Bexar County could not find that a
similar emergency exists with reference to the courity'employees
iiotnamed in the Act, so as to authorize a wage increase as to
all county employees.
          In no event, however, can employees not named in S.B.
246 receive an Increase in salary for any period prior to the
adoption of an interim or supplementary budget.
          (b) We answer the secofidpart of your 5th question
"No" . The Commissioners' Court has authbrity 'toprovide for
emergency expenditures involved in Increased salaries if-such
Increased expenditures can be paid out of "current funds."
                               VI.
          We answer your 6th question "NO"." We have held in our
Opinion No. O-6728 that Senate Bill 246 became effective on June
2, 1945, and is apflbable to Bexar County.
          Section 4 of that Act provides:
          "The Commissioners' Court of each of said counties
    shall grant'an Increase in the employees' salary bdget
    and &mend said bud&t for the necessary amount for all.
    of said county offices named In Sectibns 1 and 2 &eve,
    equal to fifteen (15$) per cent increase in the salary
    of all the employees, deputies and assistants for all
    of said offices, based on the pay roll of the particular
    office as of March, 1945. The salaries of the officitils
    named in this Act shall not be Increased beyond the sal-
    aries fixed in this Act. D D . en
            It is clear that the officers whose salaries are fixed
    3.B. 246 do not receive the 15% increase provided for in Sec.
bqy
 .
of
     The Legislature flnding that all 15% increase in the salaries
    the  employees of thB officers named in S.B. 246 Is necessary
IS  In  effjecta finding that a 15% Increase is sufficient. We do
not believe the Commlssloners' Court would be authorized to in-
crease the salaries of employees more than 15$, based on the
March 1945 pay roll, and we can see nd reason for adopting a bucl-
get for a particular office beyond that'necessary to pay the 1,n-
crease in salaries provided for "in Senate Bill No. 246. We are
not prepared to say, however, that the Commissioners' Court is
bound, in preparing an interim budget, by the buaget which ended
July 31, 1945. There is actually no specific statute covering
your particular situation. H.B. No. 240 became effective on
April 9, 1945, but its~provislons with reference,to preparing a
budget seem to be operative only aft&r January 1, 1946. It how-
ever repeals "all laws and parts of laws in conflict" with it.
Hon. John R. Shook, page 11         Q-6819


Articles 68ga-g to 11, V.A.C.S., are in conflict with H.B, 240,
Insofar-as they &uth&lze the Countg Judge, Instead of the County
Auditor, to prepare a budget for Bexar County.
          It is primarily the responsibility of the Commissioners'
Court to adopt a budget. If the county,auditor prepares the
interim budget the Commissloners"Court, under H.B. 240, cati
make 'lsuchchanges ib the luaget as in Its judgment the facts'
ana the law warrant and the interest of the taxpayers demand",
so long as the current expenditures do not exceed the current
revenues'as defined in that law. If, however, the county juage
had prepared and the Commissioners t Court haa aao'pteasibudget
under Art. 6aga-9 to 11, V.A.C.S.,~for the calendar year 1945,
we believe that it could now be amended by the Commissioners'
Court. S.B. No. 246 expressly provides in Section 4, copied on
page 11 above, that the budget shall be amended to provide for
the 15% salary increase'.'So, regardless of who the Commlssiofiers'
Court designates to prepare the Interim budget, we'believe that
the amended or suPplementa budget previtiuslyprebared,should be
revised in accbrdance with this opinion and that an interim bud-
get should be adopted as soon as possible.
          Trusting that we have satisfactorily answered your
questions, we are
                                 Very ~truly yours,
                              ATTORNEY GENERAL OF TEXAS
                                 By s/Fag&n Dickson
                                      Fagan Dickson
                                      Assistant
FD:rt:wc

APPROVBD OCT 2, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/JAB Chairman
