THEATTORNEYGENERAL
OF TEXAS
GERALD C. MANN
Honorable E. L. Shelton
County Auditor
Johnson County
Cleburne, Texas
Dear Sir: Opini.onNo. Q-3410
Re: If a budget,account has been over-
drawn in 1940, is the account
chargeable to the 1941 budget?
Your recent request for an opinion of this department
on the above stated question has been received.
We quote from your letter as follows:
"If a budget account has been overdrawn in 1940
Is that chargeable to 1941 budget. For example; a
fund has an overdraft at the bank on January lst, 3.941,
which is caused partly from and overdrawn budget of
1940 together with other previous years in similar
mamer added to which makes an overdraft at the bank
on Januar lat.,1941 of $~,OOO.OO, is this chargeable
to the 193:1 budget.
'Ever since the enactment of the officer salary
bill I have held that this should be done, not for
one account but all, and I have struck opposition
to this holding. I would like to be correct In the
matter.
"If they don't take this out of the budget of
1941 I don't see how and where they ever expect to
catch up.
Your letter of April 24, 1941, presenting another ques-
tion In connection with the above stated question reads in part
as follows:
"With further lnqulry, in the event you find that
the overdraft from a previous year cannot be charged
to the budget of a current year, could or would the
delinquent tax collectfons have to be held to apply
Honorable E. L. Shelton, page 2 O-3410
against this deficit or overdraft?"
. . . . . .8,
II
From the facts stated in your letter, it is apparent
that there was an overdraft of Six Thousand Dollars ($~,ooo.oo),
at the bank, against the county on January 1, 1941, caused
partly from an overdrawn a,ccountin 1940, and previous years.
Article 68ga-9, Vernon's Annotated Civil Statutes, among other
things provides in effect that the budget shall contain a com-
plete financial statement of the county, showing all outstandi.ng
obligations of the county, the cash on hand to the credit of each
and every fund of the county government. The funds received from
all sources during the previous year, the funds available from
all sources during the ensuing year, the estimated revenues avail-
able to cover the proposed budget and the estimated rate of tax
which will be required. Article 68qa-11, Vernon's Annotated
Civil Statutes, In effect, provides in part that when the budget
has been finally approved by the Commissioners Court, the
budget, as approved by the Court shall be filed with the Clerk
of the 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. It is stated in the case of Southland Ice Company
VS. City of Temple, 100 Fed. 2d 825, that "Subdivision 20 of
the Budget Law, authorizing changes in the budget, must refer to
changes within the objects covered by the budget, because if new
matters could be added to the budget, then the emergency provl-
sions would serve no purpose."
We do not know how the above mentioned overdraft WRS es-
tablished and do not pass upon the question of its validity be-
cause this question is not before us. However, apparently the
overdraft is a result of borrowing money by the county. Generally
speaking, counties are held to ha,veno power to borrow money, un-
less exvresslv authorized so to do bv constitutional or statutorr
provision; and such power will not be implied. (Corpus Juris "
Secundum, Vol. 20, P. 1078).
It has been held that powers conferred on a Board of
County Commissioners by the general law of the State do not in-
clude the power to borrow money; and it is not ordinarily con-
templated that the current expenses of counties are to be met
with borrowed money. The authorities are in harmony in denying
to one from whom money has been borrowed by a county without
authority the right to recover on the original contract of loan,
whether this be by note, bond, warrant, or otherwise. They are
also in harmony as to the ri,ghtto recover on qua,ntummerit the
moneys loaned if the county received the benefit of the money by
applying it to the payment of its valid indebtedness. (Ruling
Case Law, Vol. 7, P. 944).
- .
Honorable E. L. Shelton, Page 3 O-3410
It is important to observe that a county may have the
power to incur indebtedness without having the power to borrow
money. The distinction Is not fanciful. It Is of peculiar
significance In respect of constitutional provisions or statutes
which prohibit counties from exceeding their current revenues.
Thus, a county which has an empty treasury but the prospect of
revenues for the year may have the power to incur an indebted-
ness for a current county expense within such anticipated
revenues where It does not have the power to borrow money to
meet the expenditure. (American Jur., vol. 14, P. 225).
It is a well established principle of law in this State
that the Commissioners' Courts of the various counties have
only such power as expressly or impliedly conferred upon them
by law. After a careful search of the statutes and various
authorities, we fail to find,any authority authorizing the
county to have an overdraft as above mentioned. It is clear
under the County Budget Law, above mentioned, that no expencli-
ture of the funds of the county shall thereafter be made except
in strict compliance with the budget as adopted by the court.
In view of the foregoing authorities, the two above
stated questions are respectfully answered in the negative.
Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/ Ardell Wllllams
Ardell Williams
Assistant
AW:mp:wc
APPROVH) MAY 5, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman