Untitled Texas Attorney General Opinion ( 1958 )

THEATTORNEYGENERAL OP TEXAS October 17, 1958 Honorable Bill Pemberton Oplnlon No. ww-513 County Attorney Hunt County Re: May the County Commis- Greenville, Texas sioners of Hunt County drive and operate motor vehicles owned and main- tained by the county in the performance of their duties and also draw the monthly expense allowance authorized under Section 2, Article 2350n, Vernon's Civil Statutes, and relat- Dear Mr. Pemberton: ed questions. You have requested an opinion on the following ques- tions: "1. May the County Commissioners of Hunt County, Texas drive and operate motor vehicles owned and maln- tained by Hunt County, Texas In the performance of their duties as road commissioners In the building and maintaining of roads In'Hunt County, and at the same time draw each month the $75.00 per month expense allowance authorized under Article 2350 n Section 2, which 1s allowed to them as County Commissioners for expense In operation and upkeep of their private auto- mobiles while on official business within the county? "2. Is the $75.00 per month allowance for travel- ing expense and autbmnbllc depreciation, which 1s authorized under Article 2350 n Section 2 considered as an expense of office, or Is such allowance conslder- ed as salary, and If so, would the voting by the court of such $75.00 per month allowance to themselves be the equivalent of a raise In salary?" Hunt County ha8 a.population, according to the 1950 Federal Census, of 42,731 lnhabitantr. Therefore, the traveling expense of county ``ommlaslonersla ggverned by the provisions of Honorable Bill Pemberton, page 2 (WW-513) Article 2350 and Section 2 of Article 2350n, Vernon's Civil Statutes. Section la of Article 2350 provides as follows: "Sec. la. The Commissioners Court In each county is hereby authorized to pay the actual tra- veling expenses Incurred while traveling outside of the county on official county business never to exceed Three Hundred Dollars ($300) in any one year for each said official." Sections 2 and 4 of Article 2350n provlde as follows: "Sec. 2. In any county in this State having a population In excess of twenty-one thousand, five hundred (21,500) but not In excess of one hundred twenty-four thousand (124,000), according to the last preceding or any future Federal Census, the Commis- sioners Court Is hereby authorized to allow each member of the Commissioners Court the sum of not exceeding Seventy-five ($75.00) Dollars per month for traveling expenses and depreciation on his auto- mobile while on official business within the county. Each member of .such Commissioners Court shall pay all expenses in the operation of such automobile and keep same in repair free of any other charge to the county." "Sec. 4. The provisions of this bill shall apply only to those counties not furnishing an auto- mobile, truck, or by other means providing for the traveling expenses of its commissioners, while on official business within the county." It has been held by this office on nr'merousoccasions that under Section la of Article 2350, county commlssloners are entitled only to actual and necessary traveling expenses while traveling outside the county on official buslr.ess. Attorney General's Opinions V-1344 (1951), V-200 (1947) and 0-7438 (1946). The basis for such a construction is on the language "the actual traveling expenses incurred while traveling outside the county." The traveling expenses provided for In Article 2350n are not limited to traveling expenses actually Incurred. Attorney General's Opinion V-1344. Honorable Bill Pemberton, page 3 (WW-513) In Attorney General's Opinion V-1344 it was held: "It has been held that under Section la, county commissioners were entitled only to the actual and necessary traveling expenses while traveling outside the county on official business. V-200 (1947) and O-7438 (1946). T``t&``nfo?~uch a construction was the language 'the actual traveling expenses Incurred while traveling outside of the county.' Senate Bill 13llcontalns no such language. On the contrary, It Is stated that the commissioners' court is authorized to allow each member of the com- missioners' court a sum not to exceed $100.00 per month 'for traveling expenses and depreciation on his automobile.' No formula is prescribed in Senate Bill 131 for determining the amount of automobile deprecia- tion each month. Furthermore, the traveling expense Is not limited to traveling expense actually Incurred. It is therefore our opinion that it was not the lnten- tlon of the Legislature that the members of the com- missioners' court would be required to show that tra- veling expense.allowed them had been actually Incurred before payment could be made. "Some statutes allowing travel expense to offi- cers on-the basis of expenses ac~tuallyIncurred or distance actually traveled ~expresaly require sworn statements from the officer makin the claim. See, for example, Articles 6877-l and 888gc, V.C.S. However, there is no provision In Senate Bill 131 requiring the members of the commissioners1 court to furnish a sworn statement relative to travel expense incurred by them." ; (Empahsia ours). In Attorney General's Opinion S-44 it was held that county commissioners could receive the maximum provided under Article 2350n for traveling expenses within the ,county, If dur- ing the same period of time, they were not being furnished a vehicle by the county or were not actually receiving traveling ex enses within the county under’the provisions of Artlcie 2350 (67 and Article 2350 (7):' It la noted'that Article 2350 provides for traveling expenses outside the county, while Article 2350n Honorable Bill Pemberton, Page 4 (NW-513) provides for traveling expenses hithin the county. You state in your request that the commissioners' court of Hunt County voted to furnish their own privately owned automobiles for their use while on official business within :he county and allowed each member of the commissioners' cqurt the sum of $75.00 per month to cover traveling expenses and depreclatlon on each.of their automobile& while used on official business within the,county. However, .your questions assume that the.county commlssloners are furnished motor vehicles owned and maintained by the county, rather than using their private automobiles. This results In a conflict In the f-ctual basis upon which your request Is made. Thus, we can only answer your questions In the alternative. If the commissioners are furnished motor vehicles owned by the County for use and the necessary traveling incurred within the county, the provisions 0f'Section 4 of Article 2350n would prohibit the payment of traveling ~expenaeallowance al- lowed insection ,2 of Article 235On. If, on.the other hand, the commissioners use their private vehicles while traveling on official business within the county, the commlssloners would be entltled..toreceive $75.005;permonth as expense allowance under the provisions of Section 2 of Article 2350n. In answer to your second question, the allowance provided in Section 2 of Article 2350n constitutes allowance for traveling expense and automobile depreciation, and not salary or compensation. Attorney General's Opinion V-1344. SUMMARY County connnl~slodersmay recieve the traveling allowance expense provided in Article 2350n for traveling on official business within the county, provided the county commlssioners~are using their privately owned motor. vehicles for traveling on of- ficial business within the county mther than the county furnishing Honorable Bill Pemberton, page 5 (WW-513) the commissioners with county- owned motor vehicles for such pur- pose. The allowance provldgd in Section 2 of Article 2350n, Vernon's Civil Statutes, constitutes allowance,for traveling expense and automobile depreciation and does not constl- tute salary or compensation. Yours very truly, WILL WILSON Attorney General of Texas Assistant JR:mg APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman Wallace Flnfrock Llnward Shivers John B. Webster REVIEWED FOR THE ATTORNEY 'GENERAL BY: W. V. Geppert