TIIE.L%TI?OICNEY GENE-L
OP TEXAS
AUIBTI?U 1%TEXAS
PRICE DANIEL
AIIOFl?aEYGEWERAL
Yaroh 25, 1947
Hon. lc. G. Garvey Opinion Ro. v-103
Co’unty Audit or
Bexar County Re: Under the giyen raots
San Antonio, Texas would the Conmlaslonereq
Court or Bexar Co?mty
hare the authority to
: reallocate oertaln funda
under the Budget Law?
R8az Mr. Gamey:
In your Isttrr or’*ebAaxy 26, 1947; you’re- -
quest the opinion or thla depaH+ant upon certain ques-- 1
tlons arising under Bouacl Bill 240, Chapter 63, page 93;
A&3 or the 49th Le$islature, 1943; AS. 1666, V.R.O.S.,
,~‘and espeoially the power of the Commissionereq Court to
‘transfer’ or reallocate existing budget surpluses during
the year. This is comaonly referred to ae House Bill
240 and ia the budget ‘law pelrtalning to oountfes wltha.a
population in efceda of:225,CCC, ai shown by the last
zfi;dihg Federal Ceneua, Your County falls within iJiis
vie do not deea it ueoesaary to eet out your op-
Inion’requeet in -full, but we think it my be divided in-
to three questions, one of which is general and two speo-
irio e Your general question is ror a oonstruotion or
~what la meant by “a budget or l&he kind and fumIW which
appeara in said House Bill 240 ad hollows:.
“Said Court may upon proper’ applioa-
tion transfer an existing budget surplus
during the year to a. budget of like kind
.aad rund, but ho euoh transfer ahall in-
“oream the total of the budget .”
The two conorete questiona presented by you
w8 r&stake’ as follows:
(1) bray the Commissioners1 Court transfer
ok reallocate the existing balance of $17 589.00 remain-
ing in the, County Farm Budget after its d$econtinuahoe
by the Comisefonerrrq Court, and no longer needed for the
purpoee originally allocate&, to the budget fo.r the ootm-
ty ,jail;.
t
.,. TV
..’
Han, E. G. Garvey - Page 2 (V-103)
(2) May the Commissioners’ Court transfer
or reallocate $3,000,00 from the Advertising and Publi-
oations Budget to the Voting Maohlne Budget?
We do not think it desirable, either rrom
the standpoint of Bexar County or other counties corn-
ing under the provisions of Bouse Bill 240, or of thfs
department, to attempt to formulate a rule or pattern
ror the Comnissionersl Court to follow applicable to
all or the situations whlah night arise in the ooortmo-
tion that, should be placed upon what Is meant by “a bud-
&et of like kind and rundw; but in answering the two
oonorete questions whioh we have stated above, it will
Abe moemary ror us to endeavor to aeoortaln the legis-
lative Intent in the use of this term, and the mearirg
that should be aaaribed to it. In doing 80, we do net
attempt to extend’thb meaning beyond Its applioation to
the two conorete questions whioh we shall answer, bUti
or neoessity some gendral idea6 or its meaning and ap-
~pli~atlon will roilon.
The Legislature did not derine “like kind,”
hence ‘we are relegated in, oonstrulmg this ten.to itr
.:usual,’ ordinary and generally aooepted meaning, unless
*-the ‘Dontext in whloh we rind .it requires a different
~meanlng, and we do snot think it does. This is in ao-~
oord w1th.a universally aooopted rule of atbtutory Qon-
struction, and needs no oltatlon of authority to sup-
pert it. It is not neoeasary for us to determine wheth-
er or ,not the proposed tranerers or allocations are to
a “like i’und,w for your request shows that In any event
the transfers are withih wllke fund.” We need, there-
~rore, to oonsider only the quastion or whet&or or not
the transfers or allooatlons are to a wbudget of like
kind.”
We are prlmarllp,~onoermd with the meaning
that should be a-sorlbed to the word *like” as used in
the phrase “budget of like kind.” Webster derlnes.the
word “like” as having the same, or nearly the same, .ap-
pearanoe, qualities, or charaoteristlos; resemblQg,
similar to.. Applying this natural and ordinary meaning
to the word, as we must, we think the language or the
statute means a budget having the &me or nearly the
same qualities and charaoteristioe; resembling or aim-
tpM;,” the budgetfrom which a transfer or allocation
We think, however, the distlnotion Intended
is a brAad one between the respective budgets as orig-
inally set up, and should not be construed so strictly
Hon. E. GO Garvey - Page 3 (V-103)
as to virtually nullffy the power of the CoaunisslonersP
Court in transferring or allooating funds from one bud-
get item to another budget item, as contemplated by the
Act o That the Legislature intended that the Commiss~ion-
ers’ Court have the power to transfer unexpended bal-
ances when no longer needed for the purpose eriginally
set up in the budget to ansther budget short of runds
is clearly evidenced by a rea&ing of the entlra Aot, for
in it we find:
“The amount set aside in any budget
ror any purohase, orbr er requialt&on, con-
tract) speolal purpesa, or salitry and labor
aaoount, shall not be available for allooa-
” 9 The report shall ooatair a eom-
plate &aCement of the balances on hand at
the beginning and the close of the &e&h,
and the aggregate receipts to and aagaagate
disbursemeats from each fund, the t
to and Sraa WC@ fund="
Thus it olearly appears that the Legislature,
in the pasrago of this Act, recognized th8 necessity of
transfers iron one fund to another as set up in the bud-
get, but has put two e*prers limitations on the power
thus conrerred upon the Cemmiseioners* Court, namely, t&t
the transferbe from a fund or budget to a fund or budget
of like kind, and that the tranarer shall not lncroase
the over-all a&ount originally set up in the budget.
A budgat,‘undbr the Aot, is more than a &ara
estimate of probable revenues and expenditures. It fs
this and more, It is a method whereby expenditures are
controlled and Ifs&ted during the fiscal period by desig-
nating the amounts of money legally at the disposal of
the oommissfonors, and the purposes for which they may be
expended. The Legislature rsoognized that tax payiag cit-
izens have a vital interest in the appropriation and ex-
pondibure of publio funds ia that it is pravUe4 lnthe
.
Hon. E. G. Garvey - Page 4 (V-103)
Aot that, a public hearing be had on the adoption of the
budget, and that any Interested citizen has a right to
be heard. After ~the adoption of such a budget, it can-
not be changed, except within the limitation we restate
below, Realizing, however, that the orderly adminis-
tration of the fiscal affairs of the county might re-
quire oooasional reoonsideration of the needs of the
various departments ana institutions of the county, pro-
vision has been made by authorizing unused and une~xpend-
ed balances in the various budgets to b8 transferred
where the need is greater, but such transfers are limit-
ed from and to budgets of *like kind,” We believe the
budget of the County Farm is enough like that of the
County Jail to come within the spirit, if not the letten
of the statute, The County Jail and the County Farm are
both dounty institutions, both have superlntenaents, ce
tain oommon items of maintenance suoh as fuel, lights,
water, eto. S as disolosed by an examination of the Copy
of the budget submitted by you, and we think wIthin the
meaning of the budget law are “budgets of a like k1nd.w
Allocations Sor maintenance and operation of slmilar~~
county owned~institutions are of like kind, In our opin-
ion.
In the case of Commissioner of Internal~Rev-
enue v. Crichton. 122 F. (26)’ 181, .Judge Eutoheson, in
oonstruIng the term wproperty of a like kInd,.w.appearihg
In the Internal Hevenue Code, whioh provides that no
gain or loss shall be reoognized if property held for
produqtlve use’ In. trade or business or for investment
,is: exohanged ‘solely fork property of a like land, said:
“The commlssi~oner oonoodes, as he
must’, that under Louisiana law, mInera
ri~ghts are Interests not in personal but
‘In real property, and that the rights ex-
qhanged were real righta. In the light
therefore of the rule. the regulation lays, ..~.
down, of the examples given in the ,Illus-
trations it puts forth, and of the oon-
struotion which, under its interpretation,
the statute has been given throughout this
long period, it will not do for him to now
marshal or parade the supposed dissimilar-
ities in grade or quality, the unlikenesses,
In attributes, appearance ,and capaoitiea,
between undivided real interests In a re-
speotively small town hotel, and mineral
Hon. 3, G. Garvey - Page 5 (V-103)
properties. For the regulation and the
interpretation under it, leave in no
doubt that no gain or loss is realized
by one, other than a dealer, fron.an
exchange of real estate for other'real
estate, and that the distinction in-
tended and made by the statute is the
broad one between olawes and charab-
ters of properties, far instance, be-
tween real and persazal property. It
was not inte+ded to draw any al8tino-
tlon between parcel6 4f real progorty
however dlsslrilar they my be 18 leca-
tioa, in attribute8 and la capaaitl88
for prafitable uae~.~
Conoeddly this oa88 is not altogather anal-
ogous to the imsta8t 8ltuatlan oonsidered here, but it
does in our opllion land weight to a broad oonstruotlon
of the term "like kind4 a8 used in H. B. 240.
You am, therefore, r88peotfully advised
that in our 4piniOa the f.%d.I8i8wrS’ OOUrt la auther-
iz8d to tramfor all or any part of the umx)88dOd bal-
anoo no longer m8d8d for th4 08uaty Far8 to the budget
of the County Jail. of OOUr86 the OXi8tO&O, Of thi8 un-
U88& bala8or in the Ceunty Farm Budgot, a8d th8 powor of
the Comais8ioner8q Court to tramtier it to th8 County
Jail Budgrt, mrts within the seund disor8ti84 ef the
Comml88ion~8~ Court ba88d up8n sourd ecenwdo p~lmolplos
in the admld8tratlea of tkm fisoal afrairr of the O~U-
ty.
We OOBOmw to the sooenl quo8tie&, the auth-
ority Of tho CO10Li88d4P*r8e CQUrt t4 trrL88f4r a'8U&U8
in tke Adverti8iPg aad Publloation Budget of )ar;OW.OO~to
th8 Toting Maokll, Bud&&, an6 if w8 apply, a8 u8 must,
the 8am4 reaaozing in passing upon this seoond quobtlaa
as the first, it is obvious that the budget for advertir-
ing and publication is not of like kind to that of voting
IMOhilleS. In dafarrnoo to what weoono~lve to be the
legislative intent in the enaotment of this law to vest
in the Comnlssionerse Court rather broad discretion in
transferring unused surplus in one buaget to anothatr, we
would be inclined to approve a transfer of the budgetlprrs
lnvolvod if we 00uia find some baeis of slrtlatlty bo-
tweea the two budgets, but this ti are mabl8 to de, It
therefore foll8w8 that we an8w8r y4ur 8848~d qUO8ti8n In
the negative.
.
Hon. E. G, Garvey -~Pags 6 (V-103)
It oannot be'$aia that the~term "budget of
like kind and fund," as used in II, B. 249, is free from
ambiguity; and we take the liberty to suggest that it
might be desirable for this p;rovision of'the A& to be
clarified as to lheanfng by the Legislature now in ses-
sion.
The Commis8ionerss Court of Boxer
'County is authorized under House Bill 240,
Chapter 65, page 93~, Aots of the'49tB Leg-
islature; Article 1666, V.R.C.S., to trans-
for an unused surplue from the County Farm
,Budget to the, County Jail. Budget,, as they
8.1.0 budget8 of "like kind"; but f8 without
authority to transfer an u&expended bal-
anee in the Advertising and Publioatlon
BUQet to the Totimg:M8ohiae ~Budgot, ,a8,
~.they are not budgatr~ ef a llke klzd a8 oon-
:,templ8ted by~the previsleas of House BLll
240, applioable to Bexar Ceunty aad ether
oouat$es hqlng a populatimir Woe88 of
225,000 a8 shown 'by the 188t pro4e(tiig
United Sb4k8 hl8U8.
Y,Uti8 Very tl?UlJ,
A~+WIXYOENERA%QFT&X&.8
L. P.~ Loller d
lL;zL:am:yb A88illtMt
AFPROVEDHAROH26,1947