When does a Texas commissioners court have to approve a defeated county commissioner's spending?

Plain-English summary

A district attorney asked two questions about section 130.908 of the Local Government Code. That statute, aimed at small counties (under 50,000 people), requires the commissioners court to approve the expenditures of an incumbent county commissioner "who was not reelected" once a different person is elected to the office, during the period after the official canvass of the election returns. The concern behind the statute, as a 1991 bill analysis explained, was that in counties whose budget year ended September 30 while commissioner terms ran through December 31, a defeated commissioner could use the last three months to spend down the new budget.

The first question was timing: does the statute apply once an incumbent loses or sits out the primary, or only once a successor is actually elected? The Attorney General concluded it applies only after a person other than the incumbent has been elected at the general election. By its plain language, the statute is triggered when someone "is elected" to the office, with the clock starting when the canvass is announced. A primary does not elect anyone; it only nominates a party's candidate. A candidate is elected only by receiving the most votes in the general election, which requires the election to be held, and the Election Code provision that lets some unopposed candidates be declared elected does not apply to county officers. So even a defeated or non-running incumbent is not subject to section 130.908 until the general election produces a successor.

The second question was whether the approval must come in advance. The opinion concluded it must. Commissioners courts generally spend county funds as a body, and individual commissioners cannot bind the county on their own; the commissioners court audits and settles accounts and directs their payment. Read against that backdrop, section 130.908's command that the court "must approve any expenditures" by the defeated incumbent means advance approval before the incumbent commits county funds. The word "must" makes that a mandatory duty. How a court complies, such as by limiting appropriations or requiring advance sign-off on individual expenditures, depends on the county's spending procedures.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The requesting district attorney and small-county officials (what the opinion held): The opinion told them section 130.908 does not bite at the primary stage. It applies only after the general election canvass shows a different person was elected, and it then requires the commissioners court's advance approval of the defeated incumbent's spending.

Defeated incumbent county commissioners (what the opinion held): The opinion held that, once a successor is elected at the general election, such a commissioner in a county under 50,000 cannot commit county funds without the commissioners court's prior approval.

Commissioners courts in small counties (what the opinion held): The opinion read the statute to impose a mandatory advance-approval duty, leaving the method (limiting appropriations or approving individual expenditures) to the county's own spending procedures.

Common questions

Does the lame-duck spending rule kick in when a commissioner loses the primary?
No. The opinion concluded section 130.908 applies only after a different person is elected at the general election, because a primary only nominates a candidate and elects no one.

What if the successor runs unopposed in the general election?
The person still is not "elected" until the general election is held and canvassed. The opinion noted the Election Code provision allowing unopposed candidates to be declared elected does not apply to county officers.

Does the commissioners court approve the spending before or after the fact?
Before. The opinion concluded the statute requires advance approval, because "must" creates a mandatory duty and the commissioners court ordinarily controls county spending as a body.

Does this apply in every county?
No. Section 130.908 applies only to counties with a population of less than 50,000.

Background and statutory framework

Section 130.908 of the Local Government Code requires that, if a person other than an incumbent county commissioner is elected to the office in a county with a population of less than 50,000, the commissioners court must approve any expenditures by the incumbent who was not reelected, during the time following the announcement of the official canvass. Tex. Loc. Gov't Code Ann. § 130.908 (Vernon 1999). It was enacted in 1991 as House Bill 1057. The opinion construed it by its plain language. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999); Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 482, 484 (Tex. 1998).

A person is not elected by a primary, which only nominates a party's candidate; a candidate is elected by receiving the most votes in the general election, which must be held. Moore v. Barr, 718 S.W.2d 925, 927 (Tex. App.-Houston [14th Dist.] 1986, no writ); Tex. Elec. Code Ann. § 2.001 (Vernon 1986). The Election Code provision permitting an unopposed candidate to be declared elected does not apply to county officers. Tex. Elec. Code Ann. § 2.051(a), (b)(2) (Vernon Supp. 2002).

Commissioners courts spend county funds as a body and individual commissioners cannot bind the county acting alone. Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948). The commissioners court audits and settles accounts and directs their payment, and in a county with an auditor the auditor approves claims before the court's meeting. Tex. Loc. Gov't Code Ann. chs. 111, 113 (Vernon 1999 & Supp. 2002); § 115.021 (Vernon 1999); § 113.064(a). Read against that background, the opinion concluded section 130.908 requires advance approval, presuming the Legislature intended a change in the law when it added the provision. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979); Am. Sur. Co. of N.Y. v. Axtell, 36 S.W.2d 715, 719 (Tex. 1931). The word "must" creates a mandatory duty. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Wright v. Ector County Indep. Sch. Dist., 867 S.W.2d 863, 868 (Tex. App.-El Paso 1993, no writ); Tex. Gov't Code Ann. § 311.016(3) (Vernon 1998).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 130.908 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. chs. 111, 113 (Vernon 1999 & Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 115.021 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 113.064(a)
• Tex. Elec. Code Ann. § 2.001 (Vernon 1986)
• Tex. Elec. Code Ann. § 2.051(a), (b)(2) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 311.016(3) (Vernon 1998)

Cases:

• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999)
• Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 482, 484 (Tex. 1998)
• Moore v. Barr, 718 S.W.2d 925, 927 (Tex. App.-Houston [14th Dist.] 1986, no writ)
• Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948)
• City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979)
• Am. Sur. Co. of N.Y. v. Axtell, 36 S.W.2d 715, 719 (Tex. 1931)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)
• Wright v. Ector County Indep. Sch. Dist., 867 S.W.2d 863, 868 (Tex. App.-El Paso 1993, no writ)

Legislation referenced: House Bill 1057, 72d Leg., R.S. (1991). Prior Attorney General opinions referenced: JC-0307 (2002), JC-0100 (1999).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0565
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0565.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

October 22, 2002

The Honorable Tim Cone Opinion No. JC-0565
Upshur County Criminal District Attorney
Upshur County Justice Center Re: Whether section 130.908 of the Local
405 North Titus Street Government Code applies when an incumbent
Gilmer, Texas 75644 county commissioner is not renominated to office
in a primary election, and related question
(RQ-0540-JC)

Dear Mr. Cone:

You ask about section 130.908 of the Local Government Code, which requires commissioners court approval of a commissioner's expenditures "if a person other than [the] incumbent county commissioner is elected to the office of county commissioner of a county with a population of less than 50,000, during the time following the date the results of the official canvass of the election returns are announced." TEX. LOC. GOV'T CODE ANN. § 130.908 (Vernon 1999). We conclude that this provision applies after a person other than the incumbent commissioner has been elected to the office in the general election. We also conclude that it requires the commissioners court to preapprove the incumbent commissioner's commitment of county funds.

Section 130.908 provides as follows:

If a person other than an incumbent county commissioner is elected to the office of county commissioner of a county with a population of less than 50,000, during the time following the date the results of the official canvass of the election returns are announced, the commissioners court must approve any expenditures by the incumbent county commissioner who was not reelected.

Id. (emphasis added). This provision was enacted in 1991 as House Bill 1057. A bill analysis explains that "some counties have a fiscal year budget that ends on September 30, rather than December 31. Because the terms of county commissioners end December 31, defeated incumbents in some counties have used the last three months of their term to spend all of the money in the new fiscal year budget." HOUSE COMM. ON COUNTY AFFAIRS, BILL ANALYSIS, Tex. H.B. 1057, 72d Leg., R.S. (1991). The purpose of the bill was to "require the commissioners court in a county with fewer than 50,000 people, to approve all spending by the incumbent county commissioner who was not reelected." Id.

You first ask when section 130.908 applies. Specifically, you ask "[w]hether Section 130.908 . . . applies to an Incumbent County Commissioner that is not re-elected at the time of the Primary election or does it only apply to the General election."[1] We gather that you ask about an incumbent commissioner who was either defeated or did not run for his or her party's nomination for office in the primary election. You ask, in essence, whether section 130.908 applies once it is clear that an incumbent commissioner will not be reelected to office, or whether it applies only once a successor commissioner has been elected to office. We conclude that section 130.908 applies when a person other than the incumbent commissioner has been elected to the office in the general election.

We construe section 130.908 according to its plain language. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999) ("[I]t is cardinal law in Texas that a court construes a statute, 'first, by looking to the plain and common meaning of the statute's words.'") (citing Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 482, 484 (Tex. 1998)). According to its plain language, section 130.908 is not triggered merely by the certainty that an incumbent commissioner will not serve another term. Rather, the requirements of section 130.908 are triggered when "a person other than an incumbent county commissioner is elected to the office of county commissioner." TEX. LOC. GOV'T CODE ANN. § 130.908 (Vernon 1999). The time period for approval of the commissioner's expenditures begins "following the date the results of the official canvass of the election returns are announced." Id.

Section 130.908 will not apply until after the official canvass of the election returns for the office of county commissioner is announced following the general election. A person cannot be elected county commissioner as a result of a primary election. "A primary election is simply a means by which a political party nominates its candidate for the general election." Moore v. Barr, 718 S.W.2d 925, 927 (Tex. App.-Houston [14th Dist.] 1986, no writ). "[T]o be elected to a public office, a candidate must receive more votes than any other candidate for the office." TEX. ELEC. CODE ANN. § 2.001 (Vernon 1986). "A candidate cannot receive any votes unless the general election is held." Moore, 718 S.W.2d at 927. This is the case even if the person will run as an unopposed candidate in the general election, because chapter 2, subchapter C of the Election Code, which authorizes the governing body of a political subdivision to declare that an unopposed candidate has been elected to office, does not apply to elections for county officers. See TEX. ELEC. CODE ANN. § 2.051(a) (subchapter C does not apply to an election of county officers), (b)(2) (requirements for subsection (a) must be met) (Vernon Supp. 2002).

You also ask whether section 130.908 requires "prior approval of any expenditure by [an] incumbent County Commissioner who is not re-elected." Request Letter, supra note 1, at 1. Generally, a commissioners court expends county funds according to the county budget and it does so as a body. See TEX. LOC. GOV'T CODE ANN. chs. 111, 113 (Vernon 1999 & Supp. 2002). And, as a general matter, commissioners acting in their individual capacity do not have the authority to bind the county or to spend county funds. See, e.g., Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948) ("individual commissioners have no authority to bind the county by their separate action"); Tex. Att'y Gen. Op. Nos. JC-0307 (2002) at 8-9 (commissioners court must approve claim, invoice, or bill acting as a body in a public meeting), JC-0100 (1999) (county commissioner serving as ex officio road commissioner lacks authority to make purchases binding on county). Section 115.021 of the Local Government Code directs that the commissioners court as a whole "shall audit and settle all accounts against the county and shall direct the payment of those accounts." TEX. LOC. GOV'T CODE ANN. § 115.021 (Vernon 1999); see also id. § 113.064(a) (in county with county auditor, auditor must approve each claim, bill, or account before the meeting of the commissioners court).

Section 130.908 provides that a commissioners court "must approve any expenditures by the incumbent county commissioner who was not reelected." TEX. LOC. GOV'T CODE ANN. § 130.908 (Vernon 1999). Given that the Local Government Code generally requires a commissioners court to approve county expenditures and payments of claims against the county, we conclude that section 130.908 contemplates a commissioners court's advance approval before an incumbent commissioner may commit county funds. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979) ("It is apparent that in amending the statute, the legislature intended some change in the existing law, and this court will endeavor to effect the change."); Am. Sur. Co. of N.Y. v. Axtell, 36 S.W.2d 715, 719 (Tex. 1931) (legislature presumed to have intended some change to existing law when amendment was enacted and effect must be given to amendment). Furthermore, the statute, in using the word "must," makes such advance approval a mandatory duty. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) ("While Texas courts have not interpreted 'must' as often as 'shall,' both terms are generally recognized as mandatory, creating a duty or obligation."); Wright v. Ector County Indep. Sch. Dist., 867 S.W.2d 863, 868 (Tex. App.-El Paso 1993, no writ) ("The ordinary meaning of 'shall' or 'must' is of a mandatory effect, whereas the ordinary meaning of 'may' is merely permissive in nature."); see also TEX. GOV'T CODE ANN. § 311.016(3) (Vernon 1998) (the term "'must' creates or recognizes a condition precedent"). How a commissioners court will comply with that duty, such as by limiting appropriations or requiring advance approval of individual expenditures, will depend upon the county's spending procedures.

SUMMARY

Section 130.908 of the Local Government Code applies after a person other than the incumbent commissioner has been elected to the office in the general election. It requires commissioners court approval of a commissioner's expenditures "if a person other than [the] incumbent county commissioner is elected to the office of county commissioner of a county with a population of less than 50,000, during the time following the date the results of the official canvass of the election returns are announced." TEX. LOC. GOV'T CODE ANN. § 130.908 (Vernon 1999). It requires the commissioners court to preapprove an affected incumbent commissioner's commitment of county funds following the general election.

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General

[1] See Letter from Honorable Tim Cone, Upshur County Criminal District Attorney, to Honorable John Cornyn, Texas Attorney General (Apr. 30, 2002) (on file with Opinion Committee) [hereinafter Request Letter].