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Adopting County Budgets and Refusal to Comply


Cities and counties alike are required to adopt a new budget each fiscal year in order to levy taxes and obtain the funding necessary to carry out their governmental duties. Each of these types of governmental entities are obligated to follow particular steps and requirements as part of the process. These procedures are contained in two separate chapters of the Local Government Code, and while there is some overlap, the process for counties carries with it a potential criminal penalty for failing to abide by the proper procedure.

Chapter 111 of the Texas Local Government Code sets out the necessary steps county commissioners must follow in order to adopt a county’s annual budget. State law generally requires, among other things, certain notices and public hearings be held prior to adopting said budget. Sec. 111.012 of that chapter also provides that “An officer, employee, or official of a county government who refuses to comply” with the process outlined in Chapter 111, is guilty of a misdemeanor punishable by up to a $1,000 fine and up to one year in county jail. That begs the question; what exactly constitutes a refusal to comply?

In an Opinion issued earlier this month, the Texas Attorney General was asked to clarify what is meant by “refuses” in this context.  Typically, in order to be guilty of a criminal offense, one must not only commit an unlawful act, but also must have done so with a sort of blameworthy state of mind which is referred to as a culpable mental state. To establish a culpable mental state, criminal statutes typically require that an act was undertaken intentionally, knowingly, recklessly or with criminal negligence. This is one of the most basic underlying principles in criminal law, though the requisite mental state often varies from offense to offense.

So, what kind of mental state is required to convict a County Commissioner who refuses to follow the budget adoption requirements set out in Ch. 111? Chapter 6 of the Texas Penal Code sets out the general requirements for criminal culpability in Texas. In relevant part, it states a culpable mental state is required for an offense unless the definition of the offense “plainly dispenses with any mental element.”

According to the Texas Attorney General, the Local Government Code does not specifically provide the necessary culpable mental state or blameworthy state of mind through the word “refuses.” On the other hand, the statute does not plainly dispense with any mental element either. This necessarily means that the “refusal” to comply with the budget process must be undertaken with some culpable mental state.

In other words, an accidental error in the process, even one undertaken negligently would not be sufficient to convict under this statute. While the AG did not make any specific determination as to which particular mental state would be sufficient, he did opine that under Penal Code subsection 6.02(c), “intent, knowledge, or recklessness” would suffice to establish criminal responsibility. The Attorney General opined that the facts will determine which mental state may be appropriate in particular circumstances but stopped short of instructing prosecutors on how to exercise their discretion in pursuing such an offense.

It is worth noting that while cities must follow a fairly similar process for budget adoption under Chapter 102 of the Local Government Code, that chapter does not contain a comparable criminal penalty for city officials.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. 

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