Untitled Texas Attorney General Opinion ( 1945 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AU8TtN :
Honorable Ii&i&r'ILEck
County Auditor
Fayette County
~IaOrange, Texas
Dear sir: 'Oplnlon No.. o-6604
Ra: Construction of Art. 2350 R. C. S.,
. .as amended by H. B. No. 84, enacted by
the 49th Leg., b respect t0 proper funds
from which such ealaples and .traveling
' expenses are to be pald;.and related
ques t Ions
.Ue have rece'lved.yoti recent &quest for an opinion from
uhlch ve quote as Pollovs: . .
71 &I re~estiag your oplnlonwlth reference
to Article 2350, R: C.. S.,-1925, as‘tiended, Acts
1945, 49th Leg., 'Regular Session, H. B. No. 84~;-page
20& of the Htise Journal.
'Article 235O~, provides and I quote:
"%-i counties. tiVhg the.f%llowlng aSSesSed value-
tlon, respectively, a8 shown b$ the total assessed
~mluation of-all properties certified by the Countg
Assessor and approve&by the Coamls810nerst Court for
County purposes, fqr the preylous year, f’rom time to
time, the cowity commlss’loners of such. counties, shall
receive annual isalaries hot to excee.d the amqnta herein
valuatloqs and salaries,-except that applicable to
Fayette 'County,) Assessed valuatton of this county is
betueep the bracket $12,OOO,OQl and'less than'$20``000,000,
not to exceed $2,500,00: s$.ary.'
"se'ctioll le;l VheComm18iloners1 Court ln each
county 18, .hWeb& authorleed t6 pay 't'ne actual t*vel
lng expenses incurred while tWIeling oUtaide of %he
county on off'lclal county~bus.lnes8 never to exceed, . . .'.
Three Hundred ($3OO.Q0)~ I)oltiFs in kiq one year for
each said of'flcial.~ _~.
. .
Eon. Homer D Bck, page 2
“Section 2. .
sloner and each’``“:‘````*``````~t~
of the County General Fund or, at t e o e o, the
~lssloners 1 Court, may be pi?ir%t-o moxf
General Fund em- and out of the Road-and .L%eymd i
lilirfzllovrii p roportTo~8~iiiit~Judge ho to ex’f
teed seventy-five per cent (75s) of such. salaries
may be paid out of the Road and Bridge P#nid, end
the remainder out of the General Fund of the County,
and each County Commissioner’s salary may, at the
discretion df the Commlssionerst Court, all be paid
out of the Road and Bridge Fund; provided this sec-
tion shall not apply except In counties where the
constitutional. 1Lmit of twenty-five cents (25#) on
the One Hundred Dollar ($100) valuation is levied
for general purposes. (
”. . .
“Fayette County tax late for General purposes Is
the constitutional limit twenty-five cents (254) on
,the dne Hundred Dollars ($100.00).
*Apparently there Is a discrepancy between Article
2350, and Section 2 of ,thie article. (I have under-
6cored the differences) In Article 2350,. the’assessed
valuation of Fayette County comes in the bracket here&
tofore mentioned and makes provlslons what funds the
salaries are to be paid from; however, it doe8 not
provide the tid or funds which the County Judge is
to be paid. While Section 2, makes certain exceptions,
but making provisions for the salary of the County
Judge. The exceptions as provided Fn Section 2 a.re
except In counties where the constitutional limit of
tventy-five (25) cents per One Hundred Dollars ($100.00)
IS levied forGenera putitioses. Article 2350 and Sec-
tion 2, are both applicable to Fayette County, ‘there-
Sore my question Is:
“1.. What funds a,re the County Commissioner8 and
Judge to be paid from?
“Section la. As stated In the preceding Paragraphs
provided that the Co8ml88loners pay actual expenses
Incurred while: traveling outside of the county on of-
sicial business never to exceed $300.00 in one year ,
for ea’ch said oSf?.%c``l~. ,,_
. 1‘.I .,,
Honorable Homer D. Eck, page 5
“This Section does not provide what fund such
expenses are to be pald from. My questions pertain-
ing to this sectlon are:
“1. What fund shall such expenses be paid from?
“2. Inasmuch as the County Commlssloners of
Fayette County are provided with a car, gasoline, tire
and maintenance of same from the Road and Bridge Fund
to attend to county business, what would be condidered
travel expenses?
“Can the Commissioners furnish their own car and
charge the Road and Bridge Fund .04 cents per mile,
when the equipment is furnished and available?
“Are meals and hotel lodging considered official
County business expenses, when they drive to a near by
city to purchase machlnerg parts for their respective
precincts?
“Fayette County has school land located in Baylor
County, Texas, and it is necessary for the Commissioners1
Court to go there, and transact business in behalf of the
Permanent School Fund: In view of this new legislation,
Article 2550, Sec. la, shall the expenses incurred while
attending to such school busLness be paid from the Road
and Bridge Fund?
“The Co8pnission&s1 Court met In regular session
Saturday Usy 19, 1945, and provided for their salary
to be paid upon the new established rate as provided,
retroactive to May 15, 1945.. It is their understand-
ing this bill was filed with the Secretery of State
May 11, 1945, without the Governor’s signature.
“question. Can the Court make their salary Increase
become effective at a date previous to the meeting
May 19, 1945."
As you quote insaid opinion request the pertinent provisions
OS Article 2550, R. C. S.. of Texas, as same is amended by H. B.
No. 84, enacted by the 49th Legislature and effective as a law
May 11, 1945, we need not set out herein the full text of saiil
Article 2350 and the bill amending same.
J
Hon. Homer D. Eck, page 4
Your first question Involves a seeming repugnancy or in-
consistency between certain sectlons of the same act (said Art.
2350 as amended by said H. B. No. 84).
It is fundamental ln th$ law of statutory construction
that when a statute makes a general provlsiou apparently for all
cases and a special provision for a particular case or class,
the former yields and the latter prevails insofar as the par-
ticular case or class,is concerned. In such circumstances, the
special prcvlslon or statute Is regarded as though it were an
exception or proviso, removing something from the operation OS
the general law. See Tex. Jur., Vol. 39, pp. 212, 213.
Section 2 of Article 2‘350, R. C. S., as amended by H. B.
NO. 84, contains a proviso to the effect that It shall not apply
except ln counties where the constitutional limit of twenty-five
cents (25#) on the One Hundred Dollars ($100) valuation is levied
for general purposes. The first section of said Art. 2350 applFes
generally to all counties. As you state Fayette County comes
wlthln the terms of said Section 2 of Art. 2350, then, ln view
of the foregoing, this special provision would control In regard
to Fayette County.
We believe the County Judge of Fayette County should be
paid wholly out of the County General Fund or, at the option of
the Commissioners1 Court, may be paid out of the County General
Fund and out of the Road and Bridge Fund in the proportion of not
to exceed seventy-five per cent (75%) of such salary out of the
Road and Bridge F’und and the remainder out of the General Fund
of the county; and that the County C~ommissioners of Fayette
County should be paid wholly out of the County General Fund or,
at the option of and In the discretion of the Co?nmlsalcnersl
Court, all of such County Commissioners’ salaries may be paid out
of the Road and Bridge Fund.
In regard to your question as to which fund the actuel
traveling expenses should be psld from when incurred under au-
thority of Section la of said Art. 2350, R. C. S., as amended
by said H. B. No. 84, we quote from the Supreme Court of Texas
(Bexar County v. Mann, 157 S. W. (2d) 134) as follows:
“All county expenditures lawfully authorized to’he
made by a county must be paid out of the county’s
general fund unless there is some lawnwhich makes
them a charge against a speclal~ fund.
Hon. Homer D. Eck, page 5
Therefore, as said Section la of Art. 2350, R. C. ‘S., in
which authority to pay traveling expenses is given, does not.
make them a charge against any special fund, we conclude that such
traveling expenses should be paid from the General Fund.
We believe that by the use of the words “actual expenses
Incurred while traveling outside of the county on offlclal
business”, the Legislature meant only the actual and necessar
expenses so incurred. Gasoline and 011, If---ix-is+
a car
bus or train fare and means and lodging, would seem to come
within this category. We are enclosing a copy of our Opinion
No. O-5598 ln regard to certain traveling expenses of County
Commlsslcnsrs ~lncurred within a county, which defines In
general terms the type of traveling expenses allowed. The
law does not authorize mileage to be charged for such travel-
ing . Neither does it authorize any traveling expenses of the
County Commissioners incurred on business without the county,
regardless of the nature of the county business, to be paid
from any fund other than the General Fund of the county.
As to your last question regarding the attempt of said
Commlsslonerst Court to make its order increasing such salaries
retroactive in effect, we point out certain provisions of Sec-
tion 44, Article 3 of the Constitution of Texas, which are as
sollows :
“The Legislature shall provide by law for
the compensation of all officers, servants, agents
and public contractors, not provided for in this
Constitution, but shall not grant extra compensa-
tion to any officer, agent, servant or public
contractors, after such public service shall have
been performed or contract entef;ed into, for the
performance of the same; . . . .
Our Opinion No. G-6576 holds, in effect, that the &xt
foregoing provision of the Constitution prohibits officer3 who
are paid under the general “salary law” from receiving an increase
of salary .fciy any such part of the year for which the work has al-
ready been pbrformed . Rowebelieve the principle announced in such
holding applies also ln then Instant case and we enclose herewith
a copy of said aplnlon.
Section 5 ti said H; B. No. 84, provides as follows:
Honorable Homer Do. Eck, page 6
“The Commissioners1 Court at Its first regular
meeting after the effective date of this Act and
thereafter at the first regular meeting of each
year shall, by order duly made and entered upon
the minutes of same court, fix the salaries of
the County Commissioners for such year, within
the limits as provided In this Act.”
Therefore, it is our opinion that the new salary rate
established under the provisions of said H. B. No. 84, could
not become effective previous to the actual date of the lawful
order of the Commissloners t Court fixing such salaries at its
first regular meeting after May 11, 1945, the effective date
of said H. B No. 84.
We trust the foregoing Sully answers your questions.
Yours very truly,
ATTORNEY
GENERALOF TEXAS
BY
Robert L. Lattlmore, Jr.
Assistnat
RLL:LJ/JCP
APPROVED MAY29, 1945 APPROVED:
(signed) Grover Sellers Opinion Committee
ATTORNEY GBNERALOF TEXAS By B. W. B., Chairman