Texas Attorney General Opinion: JM-1138 Page: 3 of 5
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Honorable Daniel W. Leedy - Page 3 (JM-1138)
an emergency. The matter of what constitutes an emergency
that will justify the amendment of the budget has been the
source of confusion and numerous questions to this office.
See Attorney General Opinion JM-784 (1987); 35 D. Brooks,
County and Special District Law, S 15.11 (Texas Practice
1989).
Attorney General Opinion JM-784 reviewed conflicting
opinions relative to whether re-allocation among budgeted
items already adopted is distinguishable from an item not
originally included in the budget in determining whether it
is necessary that an emergency exist before there may be an
amendment to the budget. It was concluded that in either
instance there must be an emergency before there may be an
amendment to the duly adopted budget.
In Attorney General Opinion JM-733 (1987), an unforsee-
able emergency caused the need for overtime work by a county
employee. The question addressed was whether the budget may
be amended to pay overtime compensation mandated by. the
federal Fair Labor Standards Act of 1938. It was concluded
that the failure to pay such additional compensation
constituted a potential violation of federal law so as to
warrant an emergency amendment.
We need not consider whether the salary increase of the
county court-at-law judge warrants an emergency amendment in
light of House Bill 1077 of the 71st Legislature, effective
upon passage on May 25, 1989. Acts 1989, 71st Leg., ch.
167, at 549. House Bill 1077 amended Local Government Code
section 111.010 by adding subsection (d) providing:
(d) 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 expen-
diture.
The following comments in the Bill Analysis to House
Bill 1077 reflect the legislature's desire to resolve the
problem requiring that an emergency exist before there may
be a transfer among budgeted items.
Current law provides that in order to
transfer funds from one line item to another,
counties with fewer than 225,000 people must
pass an order declaring an emergency and
grave public necessity due to unusual and
unforeseen circumstances. This requirement
is unduly restrictive and cumbersome. Fre-
quently, counties need to transfer fundsp. 5999
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-1138, text, February 1, 1990; (https://texashistory.unt.edu/ark:/67531/metapth273576/m1/3/?q=%22Mattox%2C%20Jim%22: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.