How must a Texas county account for and spend the excess court-cost contributions the state returns to it under Government Code 26.008?

TX AG Opinion GA-0340: How must a Texas county budget and spend the court-cost contributions returned to it under Government Code 26.008?

Plain-English summary

Some Texas counties collect certain court costs, send them to the state comptroller, and the comptroller deposits the money in a statewide judicial fund. The legislature uses that fund to supplement the salaries of county judges in participating counties. At the end of each state fiscal year, the comptroller returns whatever is left over (the "excess contributions") to the participating counties, and Government Code section 26.008 says the returned money must be paid into the county's general fund and "used only for court-related purposes for the support of the judiciary."

The Hamilton County Auditor disagreed with the county attorney about how to handle these funds and asked the Attorney General four questions: Does section 26.008 require the county to set up a separate fund and a separate budget for the money? Can the money be carried over from one year to the next? Do ordinary, day-to-day judiciary costs count as "court-related purposes," and can the auditor require that accounting? And is the money meant only for extraordinary judicial expenses?

The Attorney General concluded: section 26.008 does not require a separate fund or a separate budget, and the commissioners court in fact has no authority to adopt a "special budget" for the contributions, because they are not the kind of revenue (new-source money, grant or aid money, or intergovernmental-contract revenue) the Local Government Code lets a special budget cover. The county may still keep the money segregated inside the general fund, for example as a special line item with its own appropriation account. "Court-related purposes" is broad: it covers judges' salaries and the ordinary costs of running the courts (court-appointed attorney fees, court reporters, juvenile detention, court-employee wages and benefits), and it is not limited to extraordinary expenses. The money has no spending deadline and may accumulate from year to year. Finally, neither the auditor nor the commissioners court may go back and amend an expired budget to record that the funds were spent; whether a past, now-expired budget had actually allocated the money was a fact question the opinion said it could not resolve.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

County commissioners courts: The opinion concluded that section 26.008 did not require a county to create a separate fund or adopt a separate budget for the returned court-cost contributions, and that a commissioners court lacked authority to adopt a "special budget" for them, because none of the Local Government Code provisions allowing special budgets (new-source revenue under section 111.0108, grant or aid money, intergovernmental-contract revenue) applied. The court could instead keep the money segregated within the general fund, for instance as a special item with its own appropriation account under section 111.091(a).

County auditors: The opinion explained that section 112.001 let an auditor in a county under 190,000 in population adopt accounting regulations for county funds, but did not let the auditor amend the county budget, because budget-amendment authority is vested in the commissioners court.

Courts and court staff: The opinion read "court-related purposes" (following Opinion JC-0158) to include not just judges' salaries but the ordinary costs of supporting the operation and maintenance of the courts, such as court-appointed attorney fees, court reporters, juvenile detention, and court-employee wages and benefits. It concluded section 26.008 did not limit the money to extraordinary expenses.

Hamilton County specifically: The opinion answered the auditor's questions about the county's section 26.008 funds and addressed her disagreement with the county attorney, who had taken the position that the funds had to be placed in a separate fund and spent under a special budget.

The opinion also declined one part of the auditor's "offset" question. Whether Hamilton County's now-expired budgets had already allocated the excess contributions in past years was, the opinion said, a question involving "the investigation and resolution of fact questions, which cannot be done in an attorney general opinion."

Common questions

Does a Texas county have to keep section 26.008 court-cost refunds in a separate fund?
No. The opinion concluded section 26.008 did not require a separate fund or a separate budget. The money is paid into the county general fund and must be used only for court-related purposes for the support of the judiciary.

Can a county adopt a special budget just for these funds?
No. The opinion concluded the commissioners court lacked authority to adopt a special budget for the excess contributions. The Local Government Code lets a special budget cover only new-source revenue, grant or aid money, or intergovernmental-contract revenue, and the returned contributions fit none of those (the county had been receiving them since 1999, so they were not from a "new source not anticipated").

Can the money still be tracked separately?
Yes. The opinion explained the commissioners court could require the county treasurer to keep the funds in a special account within the general fund, or draft the budget so the spending was a special item with its own appropriation account, keeping the money segregated without a separate budget.

What can the money be spent on?
Court-related purposes for the support of the judiciary. The opinion read that to include judges' salaries and the ordinary costs of running the courts, such as court-appointed attorney fees, court reporters, juvenile detention, and court-employee pay, not just extraordinary expenses.

Can the funds be carried over from year to year?
Yes. The opinion concluded section 26.008 set no spending deadline, so the commissioners court could let the funds accumulate, with any balance left at year-end used for court-related purposes later.

Can a county go back and amend an old budget to show the money was already spent?
No. The opinion concluded neither the auditor nor the commissioners court could retroactively amend an expired budget. Whether a now-expired budget had in fact allocated the funds was a fact question the opinion said an AG opinion could not resolve.

Background and statutory framework

The opinion sits at the intersection of the statewide judicial fund and county budget law. Government Code section 21.006 creates the judicial fund in the state treasury and limits it to "court-related purposes for the support of the judicial branch of the state," and numerous statutes require court costs to be paid into it (Tex. Gov't Code Ann. §§ 21.006, 51.005, 51.702(d), 51.703, 51.704). The legislature appropriates from that fund to supplement county judges' salaries in participating counties (General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IV, 2003 Tex. Gen. Laws 5023, 5570-72; Tex. Gov't Code Ann. § 26.006). At the close of each state fiscal year the comptroller returns the leftover to the counties, and section 26.008(b) directs that the money be paid to the county general fund "to be used only for court-related purposes for the support of the judiciary as provided by Section 21.006." The opinion tied that restriction to the open-courts principle that fees charged to litigants may be spent only on the judiciary (Tex. Const. art. I, § 13; LeCroy v. Hanlon, 713 S.W.2d 335, 341-43 (Tex. 1986)).

On the budgeting side, county budget-making authority is vested in the commissioners court, and Local Government Code chapter 111, subchapter A (applicable to counties of 225,000 or less, like Hamilton County) requires an annual budget covering all proposed expenditures (Tex. Loc. Gov't Code Ann. §§ 111.001, 111.003, 111.008; Hooten v. Enriquez, 863 S.W.2d 522, 528-29 (Tex. App.-El Paso 1993, no writ)). Special budgets are the exception, allowed only for narrowly defined revenue: a "new source not anticipated" (section 111.0108), grant or aid money (section 111.0106), and intergovernmental-contract revenue (section 111.0107). Because the returned contributions fit none of those categories, the opinion concluded no special budget was authorized, but it pointed to other tools for keeping the funds identifiable within the general fund, including the treasurer's classing of funds under section 113.004 and the auditor's appropriation accounts for special budget items under section 111.091(a). The opinion separately overruled a 1980 opinion (MW-169) that had said a commissioners court could amend an expired budget, holding that the annual budget cycle confines amendments to the current fiscal year's budget.

Citations

Statutes and constitutional provisions:

• Tex. Gov't Code Ann. §§ 21.006, 26.006, 26.008(a), (b), 51.005, 51.702(d), 51.703, 51.703(e), 51.704 (Vernon 2004 & 2005)
• Tex. Const. art. I, § 13
• Tex. Loc. Gov't Code Ann. §§ 111.001, 111.003, 111.004(b)(3)-(5), 111.008, .009, 111.010(b)-(d), 111.011, 111.031, .039, .061, .068, 111.091(a), 111.0106, 111.0107, 111.0108 (Vernon 1999 & Supp. 2004-05)
• Tex. Loc. Gov't Code Ann. §§ 112.001, 112.003, 113.001, .003, 113.004(a)-(c) (Vernon 1999 & Supp. 2004-05)

Session laws and appropriations:

• General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IV, 2003 Tex. Gen. Laws 5023, 5570-72

Cases:

• LeCroy v. Hanlon, 713 S.W.2d 335, 341-43 (Tex. 1986)
• Dallas County v. Sweitzer, 881 S.W.2d 757, 765-66 (Tex. App.-Dallas 1994, writ denied)
• Hooten v. Enriquez, 863 S.W.2d 522, 528-29 (Tex. App.-El Paso 1993, no writ)
• Comm'rs Court of Caldwell County v. Criminal Dist. Attorney, 690 S.W.2d 932, 933 (Tex. App.-Austin 1985, writ ref'd n.r.e.)
• Sierra v. McClellan, 250 S.W.2d 241, 245 (Tex. Civ. App.-San Antonio 1952), aff'd, 258 S.W.2d 72 (Tex. 1953)
• Weber v. City of Sachse, 591 S.W.2d 563, 565-66 (Tex. App.-Dallas 1979, writ dism'd)
• Waller County v. Freelove, 210 S.W.2d 602, 604 (Tex. Civ. App.-Galveston 1948, writ ref'd n.r.e.)
• Rains v. Mercantile Nat'l Bank at Dallas, 188 S.W.2d 798, 803 (Tex. Civ. App.-El Paso 1945), aff'd, 191 S.W.2d 850 (Tex. 1946)

Other authorities:

• Comptroller of Public Accounts, Budgeting Handbook for Texas Counties, Sample Classification of Accounts, app. C (2001)
• Tex. Att'y Gen. Op. Nos. O-1231 (1939), O-2076 (1940), C-276 (1964), M-579 (1970), H-944 (1977), H-1254 (1978), MW-169 (1980), JM-784 (1987), JM-933 (1988), JC-0158 (1999), JC-0305 (2000), JC-0376 (2001), JC-0576 (2002), GA-0104 (2003), GA-0231 (2004), GA-0295 (2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0340
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0340.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 20, 2005

Ms. L. Marliessa Clark, C.P.A.
Hamilton County Auditor
Hamilton County Courthouse
Hamilton, Texas 76531

Opinion No. GA-0340

Re: Procedures applicable to a county's accounting for and spending excess contributions returned to a county pursuant to section 26.008 of the Government Code (RQ-0311-GA)

Dear Ms. Clark:

You inquire about the expenditure of funds returned to Hamilton County pursuant to Government Code section 26.008 and about your authority as county auditor to account for those funds.[1] You disagree with the county attorney's opinion on this subject.[2]

I. Legal Background

Section 26.008 applies to a county that sends certain court costs to the state comptroller, who deposits the money into the judicial fund, a separate fund in the state treasury. See TEX. GOV'T CODE ANN. § 21.006 (Vernon 2004) (establishing judicial fund). The legislature appropriates the court costs from the judicial fund to supplement the salary of the county judge in participating counties. See General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IV, 2003 Tex. Gen. Laws 5023, 5570-72; see also TEX. GOV'T CODE ANN. §§ 26.006 (Vernon 2004), 51.703 (Vernon 2005) (governing salary supplements for county judges); Tex. Att'y Gen. Op. No. JC-0305 (2000) at 2 (similar program to supplement salaries of statutory county court judges). At the end of each state fiscal year, the comptroller returns excess contributions to the participating counties. See TEX. GOV'T CODE ANN. § 26.008(a) (Vernon 2004). The amounts remitted to the county "shall be paid to the county's general fund to be used only for court-related purposes for the support of the judiciary as provided by Section 21.006." Id. § 26.008(b).

II. Factual Background

In Hamilton County, the fiscal year runs from October 1 to September 30 of the next calendar year, and the excess contributions ("section 26.008 funds") are returned to the county in September, after the county budget for the next year has been completed.[3] Thus, when the commissioners court prepares the budget, it does not know the amount of excess contributions the county will receive. The county attorney's letter states that all excess contributions paid to Hamilton County under section 26.008 "should be placed in a separate fund and spent in accordance with a special budget." McMullen Letter, supra note 2, at 1. "At the end of each fiscal year, any balance remaining in this fund will be carried forward in the same fund." Id.

III. Questions

We paraphrase your questions about the section 26.008 funds:

1. Does Government Code section 26.008 implicitly require the county to create a separate fund to account for the excess contributions and to adopt a separate budget for them?

2. Does section 26.008 allow these funds to be accumulated from year to year to allow for differences between the state fiscal year and the county fiscal year or for other reasons?

3. Would the offset of day-to-day expenses to support the judiciary, such as fees for court-appointed attorneys, court reporters, juvenile detention, and wages and benefits for court employees, constitute court-related purposes? Does Local Government Code section 112.001 allow the county auditor to require that accounting?

4. Is it the intent of section 26.008 to budget these funds only for extraordinary expenses of the judiciary?

See Request Letter, supra note 1, at 2.

IV. Must a County Create a Separate Fund and Adopt a Separate Budget for Excess Contributions?

We first consider whether the excess contributions must be kept in a separate fund and allocated by a separate budget. Section 26.008 of the Government Code provides that the excess contributions "shall be paid to the county's general fund to be used only for court-related purposes for the support of the judiciary as provided by Section 21.006." TEX. GOV'T CODE ANN. § 26.008 (Vernon 2004). Section 21.006, which creates the judicial fund as a separate fund in the state treasury, provides that "[t]he fund shall be used only for court-related purposes for the support of the judicial branch of the state." Id. § 21.006. Numerous statutes require court costs to be paid into the judicial fund. See, e.g., id. §§ 51.005 (fees in civil cases); 51.702(d) (fees in civil cases in statutory county courts); 51.703(e) (fees in certain county courts); 51.704 (fees in statutory probate courts) (Vernon 2005).

Section 26.008, in providing that the excess contributions shall be used "only for court-related purposes," reflects the constitutional principle that fees charged to litigants may be used only for the support of the judiciary. See TEX. CONST. art. I, § 13 (open courts provision); Tex. Att'y Gen. Op. No. JC-0158 (1999) at 3. A court fee that is used for general revenue purposes instead of court-related purposes is an arbitrary and unreasonable interference with the right of access to the courts protected by the "open courts" provision, article I, section 13 of the Texas Constitution. See LeCroy v. Hanlon, 713 S.W.2d 335, 341-43 (Tex. 1986); Dallas County v. Sweitzer, 881 S.W.2d 757, 765-66 (Tex. App.-Dallas 1994, writ denied); Tex. Att'y Gen. Op. No. GA-0231 (2004) at 3.

Section 26.008(b) provides that the excess contributions are to be paid to the county general fund. After the county receives the funds, it must ensure that the excess contributions are "used only for court-related purposes." TEX. GOV'T CODE ANN. § 26.008(b) (Vernon 2004). Section 26.008(b) does not expressly require the county to create a separate fund or adopt a separate budget for the excess contributions, nor does it address accounting methods. We will look at the laws governing budget preparation in Hamilton County to determine whether the excess contributions should be placed in a separate fund with a separate budget.

County budget-making authority is vested in the commissioners court. See Hooten v. Enriquez, 863 S.W.2d 522, 528-29 (Tex. App.-El Paso 1993, no writ); Comm'rs Court of Caldwell County v. Criminal Dist. Attorney, 690 S.W.2d 932, 933 (Tex. App.-Austin 1985, writ ref'd n.r.e.); see also TEX. LOC. GOV'T CODE ANN. §§ 111.008, .039, .068 (Vernon 1999) (adoption of budget by commissioners court). Chapter 111 of the Local Government Code governs budget preparation in Texas counties. The Hamilton County budgeting process is subject to chapter 111, subchapter A, which applies to counties with a population of 225,000 or less.[4] See TEX. LOC. GOV'T CODE ANN. § 111.001 (Vernon 1999).[5] Subchapter A requires Hamilton County to prepare an annual budget: "During the 7th or 10th month of the fiscal year, . . . the county judge, assisted by the county auditor or county clerk, shall prepare a budget to cover all proposed expenditures of the county government for the succeeding fiscal year." Id. § 111.003 (emphasis added). "After final approval of the budget, the commissioners court may spend county funds only in strict compliance with the budget, except in an emergency." Id. § 111.010(b). See id. § 111.010(c) (emergency amendment of the budget); see also id. § 111.011 (subchapter A "does not prevent the commissioners court from making changes in the budget for county purposes"). Thus, as a general matter, the county has one budget for the fiscal year.

Hamilton County has express authority to adopt a special budget for certain kinds of funds. For example, if the county receives revenue "from a new source not anticipated before the adoption of the budget and not included in the budget for that fiscal year," the county auditor shall certify the receipt of the revenue to the commissioners court, and "the court may adopt a special budget for the limited purpose of spending the revenue for general purposes or for any of its intended purposes." Id. § 111.0108 (Vernon Supp. 2004-05). Similar provisions authorize the commissioners court to adopt a special budget for the limited purpose of spending for its intended purpose "public or private grant or aid money . . . available for disbursement in a fiscal year but not included in the budget for that fiscal year" and "revenue from intergovernmental contracts . . . available for disbursement in a fiscal year but not included in the budget for that fiscal year." Id. §§ 111.0106, .0107 (Vernon 1999).

No provision authorizing a special budget applies to the excess contributions returned to the county pursuant to Government Code section 26.008. The section 26.008 funds are not "from a new source not anticipated before the adoption of the budget." Id. § 111.0108 (Vernon Supp. 2004-05). Hamilton County began receiving excess contributions pursuant to section 26.008 of the Government Code in 1999. See McMullen Letter, supra note 2, at 1. After the county began to receive excess contributions in 1999, it could anticipate receiving more such funds in subsequent years. The excess contributions are not "grant or aid money" or "revenue from intergovernmental contracts" within the other provisions authorizing special budgets. TEX. LOC. GOV'T CODE ANN. §§ 111.0106, .0107 (Vernon 1999). Accordingly, the Hamilton County Commissioners Court does not have authority to adopt a special budget, distinct from the annual county budget, for the excess contributions received by the county pursuant to Government Code section 26.008.

The legislature has authorized the county judge to estimate revenues to be received during the ensuing fiscal year. The itemized budget prepared by the county judge "must contain a complete financial statement of the county" that shows, among other information, "the funds received from all sources during the preceding fiscal year; . . . the funds available from all sources during the ensuing fiscal year; . . . [and] the estimated revenues available to cover the proposed budget." Id. § 111.004(b)(3)-(5). It is within the discretion of the county judge to estimate the excess contributions that the county will receive in any fiscal year. See Sierra v. McClellan, 250 S.W.2d 241, 245 (Tex. Civ. App.-San Antonio 1952), aff'd, 258 S.W.2d 72 (Tex. 1953); Tex. Att'y Gen. Op. Nos. O-2076 (1940) at 6, O-1231 (1939) at 3.

While the Hamilton County Commissioners Court lacks authority to adopt a special budget for the excess contributions, the Local Government Code authorizes it to provide that the funds maintain their separate identity in the county budget. See TEX. LOC. GOV'T CODE ANN. § 113.004(c) (Vernon 1999). The county must take some measures to ensure that the excess contributions are "used only for court-related purposes for the support of the judiciary." TEX. GOV'T CODE ANN. § 26.008(b) (Vernon 2004). The commissioners court may, for example, require the county treasurer to keep these funds in a special account within the county general fund. "The county treasurer, as chief custodian of county funds, shall keep in a designated depository and shall account for all money belonging to the county" and "shall receive all money belonging to the county from whatever source it may be derived." TEX. LOC. GOV'T CODE ANN. §§ 113.001, .003 (Vernon 1999). The county treasurer is required to "divide the funds received by the treasurer's office" into classes according to Local Government Code section 113.004, and "[t]he commissioners court, as it considers proper, may require other accounts to be kept, creating other classes of funds." Id. § 113.004(a)-(c). See Tex. Att'y Gen. Op. No. JM-933 (1988) at 2 (commissioners court may require separate bank account for airport fund). See also Tex. Att'y Gen. Op. No. H-1254 (1978) at 2 (county may place different county funds in a single bank account as long as limited purpose funds are segregated by proper accounting procedures). The comptroller recognizes that counties may establish "special revenue funds," defined as a category of funds "used to account for the proceeds of specific revenue sources (other than special assessments, expendable trusts or for major capitol [sic] projects) that are legally restricted to expenditure for specified purposes." COMPTROLLER OF PUBLIC ACCOUNTS, BUDGETING HANDBOOK FOR TEXAS COUNTIES, SAMPLE CLASSIFICATION OF ACCOUNTS, app. C (2001), available at http://www.window.state.tx.us/lga/budgetco (last visited June 6, 2005). See TEX. LOC. GOV'T CODE ANN. § 112.003 (Vernon Supp. 2004-05) (the State Comptroller of Public Accounts "shall prescribe and prepare the forms to be used by county officials in the collection . . . and in the disbursement of funds").

After the budget is adopted, section 111.091(a) requires "the county auditor . . . [to] open an appropriation account for each main budgeted or special item in the budget." Id. § 111.091(a) (Vernon 1999) (emphasis added). The commissioners court should consider drafting the budget so that expenditures from excess contributions constitute a special item in the budget for which a separate appropriation account must be opened. Thus, the county commissioners may take measures to separate the excess contributions within the general fund and to insure that they are spent only for "court-related purposes for the support of the judiciary." TEX. GOV'T CODE ANN. § 26.008 (Vernon 2004).

V. May A County Accumulate Excess Contributions from Year to Year?

You next ask whether section 26.008 allows these funds to be accumulated from year to year. Section 26.008 does not provide a deadline for spending these funds. The commissioners court has broad discretion over the allocation of county funds, subject to judicial review on an abuse of discretion standard. See Hooten, 863 S.W.2d at 529; Weber v. City of Sachse, 591 S.W.2d 563, 565-66 (Tex. App.-Dallas 1979, writ dism'd); Tex. Att'y Gen. Op. No. GA-0295 (2005) at 6. See generally Comm'rs Court of Caldwell County, 690 S.W.2d at 933-34. The commissioners court may make reasonable decisions about the time when the excess contributions are used for court-related purposes, subject to judicial review for abuse of discretion. See Hooten, 863 S.W.2d at 529. Any such funds remaining at the end of a fiscal year must be used for court-related purposes at a future time.

VI. Court-related Purposes

Your third question raises the following issues: whether various day-to-day expenses to support the judiciary, such as fees for court-appointed attorneys, court reporters, juvenile detention, and wages and benefits for court employees, constitute court-related purposes; whether these expenses may be offset against section 26.008 funds; and whether Local Government Code section 112.001 allows the county auditor to require such accounting. As to your fourth question, you ask if it is the intent of section 26.008 to allocate the excess contributions only for extraordinary expenses of the judiciary.[6] See Request Letter, supra note 1, at 2.

We will consider together the two issues that require us to address the meaning of "court-related purposes" in sections 21.006 and 26.008 of the Government Code: whether the day-to-day expenses of the judiciary constitute court-related expenses, and whether section 26.008 requires the excess contributions to be allocated only to extraordinary expenses of the judiciary. This office has determined that "'court-related purposes' under section 21.006 of the Government Code include not only judges' salaries, but any other costs necessary to support the operation and maintenance of the courts and the administration of justice." Tex. Att'y Gen. Op. No. JC-0158 (1999) at 3; see also Tex. Att'y Gen. Op. No. JC-0376 (2001) at 2 (funds distributed to the counties under section 26.008 may be expended to compensate court employees). Thus, the section 26.008 funds may be allocated in the county budget for these day-to-day expenses of the judiciary. Section 26.008 does not require the excess contributions to be allocated for extraordinary expenses of the judiciary, but it does not prohibit the commissioners court from allocating these funds for such purposes. The commissioners court is authorized to make reasonable decisions as to whether a particular expenditure is for court-related purposes, subject to judicial review for abuse of discretion. See Hooten, 863 S.W.2d at 529; Weber, 591 S.W.2d at 565; Tex. Att'y Gen. Op. No. GA-0231 (2004) at 4.

VII. May Excess Contributions be Offset Against Funds Budgeted for Court-related Purposes in Prior Fiscal Years?

We turn to your question about the "offset" of excess contributions. Hamilton County did not maintain a separate account for section 26.008 funds in the past and cannot now show how these funds were allocated and expended under the budgets for prior fiscal years.[7] As county auditor, you have proposed "offsetting" excess contributions received in the past against the amount allocated in each prior budget for court-related purposes. See E-mail from L. Marliessa Clark, Hamilton County Auditor, to Susan Garrison, Assistant Attorney General, Opinion Committee (Apr. 8, 2005, 3:24:27 PM, CST). You note that "during the 2003-2004 budget year this county spent $97,573.17 in support of the judiciary [and] we received $1,266.68 in 'excess contributions.'" Id. Thus, you take the position that all "excess contributions" received in prior years have been spent for "court-related purposes." Id. You ask whether Local Government Code section 112.001 authorizes you to require such accounting of the excess contributions received in prior fiscal years. See Request Letter, supra note 1, at 2.

Section 112.001 provides as follows:

In a county with a population of less than 190,000, the county auditor may adopt and enforce regulations, not inconsistent with law or with a rule adopted under Section 112.003,[8] that the auditor considers necessary for the speedy and proper collecting, checking, and accounting of the revenues and other funds and fees that belong to the county.

TEX. LOC. GOV'T CODE ANN. § 112.001 (Vernon 1999) (emphasis added). See Tex. Att'y Gen. Op. Nos. M-579 (1970) at 2, C-276 (1964) at 3 (county auditor's responsibilities under the statutory predecessor of section 112.001).

Neither the county auditor nor the commissioners court may amend an expired county budget to provide that excess contributions received in that fiscal year were spent under the budget. Section 112.001 does not in any case allow the auditor to amend the county budget because authority to amend the budget is vested in the commissioners court. See TEX. LOC. GOV'T CODE ANN. § 111.010(b)-(d) (Vernon 1999). Nor may the commissioners court amend a budget for a fiscal year that has ended. Chapter 111, subchapter A establishes an annual budget cycle, and the court's powers and duties relate to the budget adopted for a single fiscal year. See generally id. § 111.003 (budget prepared for all proposed expenditures for succeeding fiscal year). The commissioners court is authorized to amend the "original budget" and must "file a copy of its order amending the budget with the county clerk." See id. § 111.010(c). The "original budget" that may be amended is the budget for the current fiscal year that the commissioners court approved and filed with the county clerk pursuant to chapter 111, subchapter A. See id. §§ 111.008, .009.[9] Of course, if any court-related expense incurred in prior years remains unpaid, the commissioners court may allocate section 26.008 funds to that expense in a future budget. See generally Waller County v. Freelove, 210 S.W.2d 602, 604 (Tex. Civ. App.-Galveston 1948, writ ref'd n.r.e.) (suit by architect for fees not precluded by county's failure to include fees in budget).

The Hamilton County Commissioners Court, while preparing a particular budget that has since expired, could have decided to spend the excess contributions for court-related purposes under that budget or to save such funds for future court-related purposes. See Hooten, 863 S.W.2d at 528-29; Comm'rs Court of Caldwell County, 690 S.W.2d at 933 (commissioners court has broad discretion in making budgetary decisions). The expired budgets themselves and records about their preparation might indicate whether the Hamilton County Commissioners Court made any decisions about excess contributions in past years. However, an attorney general opinion cannot determine whether a now-expired county budget allocated section 26.008 funds. This determination involves the investigation and resolution of fact questions, which cannot be done in an attorney general opinion. See Tex. Att'y Gen. Op. Nos. GA-0104 (2003) at 4, JC-0576 (2002) at 4 n.3, H-944 (1977) at 5. If it cannot be shown that the excess contributions were spent in prior years, the commissioners court should consider determining that those funds have accumulated from year to year and remain available to spend for court-related purposes under the county's budget for the next fiscal year.

SUMMARY

Section 26.008 of the Government Code applies to court costs collected by certain counties and remitted to the comptroller to supplement county judges' salaries. Under section 26.008, the Comptroller of Public Accounts returns excess contributions to the participating counties, to be used only for court-related purposes for the support of the judiciary. Section 26.008 does not require the Hamilton County Commissioners Court to create a separate fund to account for the excess contributions or to adopt a separate budget for those funds. The Hamilton County Commissioners Court does not have authority to adopt a special budget, distinct from the annual county budget, for the excess contributions.

The "court-related purposes" for which the excess contributions may be spent include judges' salaries and any other costs necessary to support the operation and maintenance of the courts and the administration of justice. Section 26.008 does not prohibit the commissioners court from allowing the excess contributions to be accumulated from year to year.

The county budget of a prior fiscal year may not be retroactively amended to provide that excess contributions received in that year were spent under that budget.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from L. Marliessa Clark, C.P.A., Hamilton County Auditor, to Honorable Greg Abbott, Texas Attorney General (Jan. 21, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Letter from Honorable Andy J. McMullen, Hamilton County Attorney, to Hamilton County Commissioners Court (Dec. 28, 2004) (on file with Opinion Committee) [hereinafter McMullen Letter].

[3] Telephone Conversation with L. Marliessa Clark, Hamilton County Auditor (Mar. 30, 2005) [hereinafter Clark Telephone Conversation].

[4] See U.S. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION, TEXAS QUICKFACTS, available at http://quickfacts.census.gov/qfd/states/48/48193.html (population of Hamilton County in 2003 estimated at 8,118) (last visited June 14, 2005). Thus, Hamilton County may not operate under the alternate method of budget preparation applicable to counties with a population of more than 125,000. See TEX. LOC. GOV'T CODE ANN. § 111.061 (Vernon 1999).

[5] See also id. §§ 111.031 (subchapter B applies to a county with a population of more than 225,000); 111.061 (county with a population of more than 125,000 may choose to operate under subchapter C instead of subchapter A or B).

[6] For example, the commissioners court might wish to save the excess contributions to cover costs of a capital murder trial. Clark Telephone Conversation.

[7] Telephone Conversation with Honorable Andy J. McMullen, Hamilton County Attorney (Apr. 8, 2005).

[8] Section 112.003 authorizes the state comptroller to "prescribe the manner of keeping and stating the accounts" of county officials. TEX. LOC. GOV'T CODE ANN. § 112.003 (Vernon Supp. 2004-05).

[9] Attorney General Opinion MW-169 concluded that a commissioners court may amend an expired county budget. See Tex. Att'y Gen. Op. No. MW-169 (1980) at 2. We overrule this conclusion, which misread language in a judicial decision. See Rains v. Mercantile Nat'l Bank at Dallas, 188 S.W.2d 798, 803 (Tex. Civ. App.-El Paso 1945), aff'd, 191 S.W.2d 850 (Tex. 1946) (under statute authorizing budget change, subject to statute authorizing emergency amendment, "a county budget may be amended at any time"). The office has already overruled the other conclusions in Attorney General Opinion MW-169. See Tex. Att'y Gen. Op. No. JM-784 (1987) at 12.