Untitled Texas Attorney General Opinion ( 1942 )

Hon. R. Pat Edwards
Civil District Attorney
Halls of Records, Dallas County
Dallas, Texas
Dear Sir:
Opinion NO. O-4827
Re: CornmissIoners Court of
Dallas County is not
authorized to expand
county funds for payment
of traveling expenses of
county judge to attend
National Civilian Defense
Convention and related
matters.
Your request for opinion has been received and
carefully considered by this department. We quote from
your request as fo,llows:
“The County Auditor has addressed to me a letter
in which he advlsed and inquires:
" I have a request for payment which was presented
by the County Judge for traveling and other expenses incurred
on a trip to California, at which time he attended a Nation-
al Convention for the purpose' of procuring information that
will be helpful to Dallas County in the operation of our
Civilian Defense work.
"'I will thank you for an opinion as to whether
or not this will be a legal expenditure out of the County
Judges and Commissioners' Budget.'
"In reliance upon the numerous opinions of our
Department, and particularly upon your Opinions Nos. f;10,
2117, 2474, 4483, and 4529, I have advlsed the County
Auditor that such traveling expenses of the County Judge
cannot legally be charged against Dallas County. The
County Judge questions my opinion and contends that,
inasmuch as the Commissioners t Court authorized him to make
the trip and has approved and ordered his account paid, the
..
.
Hon. H. Pat Edwards, Page 2. (O-4827)
Auditor should issue a warrant for same. He further contends
that statutory authority exists for the payment of any and
all traveling expenses of the County Judge and members of
the CornmissIoners'Court traveling on official business,
towit, the following paragraph from Chapter 465, Acts of
the 44th Legislature, Second Called Session, page 762, as
amended by Acts of the 45th Le islatnre, 1937, First Called
Session, page 1801, chapter 2: and which is incrrporated
as Article 39129, Section L, of'vernon's Annotated Revised
Civil Statutes of Texas:
"'Each district, county, and precinct officer
receiving an annual salary as compensation shall be entitled,
subject to the provisions of this Section, to issue warrants
against the salary fund created for his office in payment
of the services of deputies, assistants, clerks, stenographers,
and investigators, for such amounts as said employees may
be entitled to receive for services performed under their
authorizations of employment. And such officer shall be
entitled to file claims for and issue warrants in payment
of all actual and necessary expenses incurred by him in the
conduct of his office, such as stationery, stamps, tele-
phone, traveling expenses, premiums on deputies' bonds, and
other necessary expenses. If such expenses be incurred
in connection with any particular case, such claim shall
state such case. All such claims shall be subject to the
audit of the county auditor; and if it appears that any item
of such expense was not incurred by such officer, or such
item was not a necessary expense of office, or such claim
is 'ncorrect or unlawful, such item shall be by such auditor
rejected, in which case the correctness, legality, or neces-
sity of such item may be adjudicated in any Court of compe-
tent jurisdiction. Provided, the Assessor and Collector
of Taxes shall be authorized in like manner annually to
incur and pay for insurance premiums in a reasonable sum
for policies to carry insurance against loss of funds by
fire, burglary, or theft ***,I
"and also the following provision, towit:
"The County Judge, County Auditor, and County
Commissioners may be allowed necessary traveling expenses
when traveling in connection with county business, such
traveling expense? to be paid out of the General and/or
Road and Bridge Fund of said County upon order of the
Commissioners' Court.'
"taken from the so-called 'Dallas County Road Law', being
Chapter 458 of the Acts of the 47th Legislature, 1941, page
729.
Hon. H.. Pat Edwards, Page 3 (o-4827)
"It is my conclusion that the above paragraph of
Article 3912e (L) does not apply to the County Judge and
County Commissioners of Dallas County; secondly, that if
the Dallas County Special Road Law is constitutional at
all, it is only constitutionally effective as to the
allowance of traveling expenses of the County Judge, County
Auditor and County Commissioners when they are traveling
in connection with the 'maintenance of public roads', and
would only authorize the County to pay such traveling expenses
in connection with the maintenance, laying out, opening, and
construction of public roads. As stated by the Supreme
Court in Austin Bros.v.Patton, 288 s.w.182, at page 188,
the Constitution authorizes the Legislature to confer upon a
county by special law or local law the power to do'onlg those
things to which the taxes raised for the maintenance and
construction of public roads, may be lawfully applied, I,
therefore, conclude that the Special Dallas County Road Law
may be statutory authority for allowing the County Judge and
County Commissioners their traveling expenses when traveling
on official business connected with the maintenance of our
public roads, but not when traveling generally on county
business.
"Inasmuch as this matter has been the subject of
considerable discussion in Dallas County for some time, and
the County Auditor and County Commissioners' Court and this
Office cannot come to an agreement in regard to the traveling
expenses of our Commissioners~ Court, Including the County
Judge, I shall appreciate very much your opinion in answer
to the following questlons:
"1 o May the traveling expenses of the County Judge
of Dallas County, attending as County co-ordinator of Civil-
ian Defense of Dallas County, a meeting of the County
Judge8 of the United States held in Los Angeles, California,
'for the purpose of working out plans for the local defense
counsel and defense guard for securing gas masks and
equipment', be legally charged against Dallas County?
"2 * Does the above quoted paragraph from the Acts
of 1937, 45th Legislature, First Called Session, page 1801,
chapter 26 (Article 3912e (L) Vernon's Annotated Revised
Civil Statutes of Texas), constitute statutory authority
for the payment of traveling expenses generally, of the
County Judge and County Commissioners when traveling on
official business of the County?
"3 o Does the above quoted paragraph from the
Special Dallas County Road Law.,being Chapter 458 of Acts
of the 47th Legislature, 1941, at page 479, constitotr
statutory authority for the payment by Dallas Coucty of
Hon. H. Pat Edwards, page 4 (O-4827)
the necessary traveling expenses of the County Judge and
County Commissioners (a) when traveling in connection wit'n
county business generally, and (b) when travclirg in connec-
tion with the maintenance, laying out, opening, and construc-
tion of public roads?
"With the exception of the above quoted article
and the above paragraph from the Special Road Law, I am
unable to find any statutory authority for the payment of
tzave:fng expenses of the County Judge and Commissioners
court , and I shall, therefore, appreciate very much the
assistance of your Department in thi.sregard."
We quote from 11 Texas JurispruZence,pages 563-":-5,
as follows :
"Counties, being component parts of the state,
have no power or duties except those which are clearly se%
forth and defined in the Constitution and statutes. The
statutes have clearly defined the powers, prescribed the
duties, and imposed the liabilities of the commissioners"
courts, the medium through which the different counties
act, and from these statutes must come all the authority
vested in the counties . . . . .
Y!ommissloners~ courts are courts of limited
jurisdiction, in that their authority ex%ends only C,Q
q at%ers pertaining 'cothe general welfa;; of their respec-
tive counfies and ';hatsaid powers are only S;hoseexpressly
or impliedlg conferred upon them by law, that;is, by the
Constitution and statutes of the state."
An officer may not claim or reach any money wi%kout
a law authorizing hlm to do so, and clearly afflxine tZle
amount to which he Is entitled. (34 Tex. Jur., p. 511;
Duclos Vs. Harris County, 298 S.W. 41.7;Binfr'rOd
Vs. RobS..r:-,
son, 244 S.W. 807.)
Opinion NO. 0-810 of this department holds ?&at
expenses of attending officers' convent-ionsare r:.ot
necessary-
in the proper and legal conduct of county offices ar,dthat
commissioners' courts have no authority to expend county
funds for such purposes.
Opinion No. o-2117 of this department hoids that
payment of the traveling expenses of members of a ,commio-sion-
trs ' tour-';
in attending a meeting of the S%a%e Highwhy
Commission with reference to designation and letting of
contracts on state highways is an illegal expenditure.
Hon. H. Pat Edwards, page 5 (O-4827)
Opinion No. O-4529 of this department hold8 that
the Commi8sionerst Court of Harris County, Texas, has no
authority to expend any county funds for the aid or aupport
of the Office of Civilian Defense.
Opinion No. 0-4483 of this department holds that
a county cannot legally pay the expenses of a county
official or an Individual which were incurred in attending
civilian defense meetings and F.B.I. civilian defense schools.
We enclose herewith copies of opinions Nos. o-810,
0 -2117, O-4529, and 0-4483 of this department,
The case of Jameson Vs. Smith, 161 S.W. (2nd)
;;;Ag;ex. Civ. App., writ refused, holds, among other
that a local road law, within the constitutiopl
provision permitting passage without notice, (Art. S,Jg,
State Constitution) must be limited to the maintenance of
public roads and highways. This case held unconstitutional
a so-called bracket law applying to Coleman County, Texas,
providing for traveling expenses for the commissioners'
court. We quote from the court '8 opinion a8 follows:
"The testimony of the plaintiffs (member8 of
the commissioners' court of Coleman County, Texas) is
that they all used their cars for 'Official bU3inG38'
aside from overseeing the construction and maintenance of
the public roads of the‘county. Three of them for but
li%tle other than road overseeing. One of them estimated
he used his car from one third to one half of %he time on
official bUSin other than road bUBine33. None of them
kept any account of any divided use. They all incurred
expenses in excess of the amount allowed and sued for-
'The act itself sets out two distinct purpose8,
the firs% of which is to reimburse or compensate the com-
missioners for traveling expenses and depreciation of the
automobile while used on official bUSine88. The second
18 to reimburse or COmpenBate the CommiSSiOnerS fortravel-
ing expenses and depreciation of the automobile while Wed in
overseeing the construction and q ain%enance of the wublic
road8 of the counties. . o D A8 we understand the cbnstruc-
tion of the constitutional provision, it is essential that
a local road law, to come within the protection of the
provision supra. (Art. 8 Section 9 Texas Constitution)
must be limited to the m&ntenance Af public roads and
ACG LS not so limited.
Hon. H. Pat Edwards, page 6 (O-48271
1,
. e . In Crow v. Tinner and Quinn v. Johnson, sup-
ra, it is very plain the laws there under consideration were
local road laws which imposed by their terms new and added
duties not imposed by general law. The Acts provided for
reimbursement or compensation or the equivalent thereof for
these new and added duties. We understand the decisionsfo
rest,upon that ground, and conclude. therefore, if the
added compensation provided for merely supplements the
compensation as provided by general law without by express
tez*msof ,theAct imposing any added and new duties, the
law merely undertakes to regulate county business contrary
to L.heConstitution, Art. 3, Sec. 56, and is not a !,ocal
road law for the maintenance of public roads and highways.
"The conclusions reached here seem to be in
harmony with what Chief Justice Phillips said in AYtgelt v.
Gutzeit, supra, and quoted by Judge Alexander in ,Zrowv.
Tinner (47 S.W.2d 393): 'No doubt the Legislaturee,in
the passage of local.road laws, may, within p2'operboilnZ:?,
provide compensation for extra services to be performed by
those officials * * * where uncontrolled by general laws
and required by such local laws and direc%ly connected
with the maintenance of the public roads.' KMchens 'vy
Roberts, supra, writ refused, is to the same effect.
"This law ia not--limited to the maintenance of
public road-s,,
nor does itimpose'-a??iedrnd new duties%?%
imoosed bv :~::eneral
law for which it unde?t;ookfo p?ovi<~e
additiona? compensation. For the reasons stated here we
it as unconstitutional, and so hold." (Cnd,ersc3ri;ig
rega~n.3
and bl:acketinsertions ours)
We also call your attention to the case of
Kitchens et al. v. Roberts, 24 S.W. (2nd) 464, Tex. Civ.
App.9 writ;refused, where a so-called special road law r'i-z
Wood County, 'Texas,providing compeusation for ?te Cuun~g
Commissioners of Wood County as road supervisors and as
county commissioners was held not to be a valid 6% LHW
because it was not fimited to road matters. The cour,i;
held it unconstitutional as a lOCal or special law attemp-
ting to regulate the affairs of a county where a generai
law could be made applicable.
The Dallas County Special Road Law referred to in
pour letter*,Thapter 458, Acts of the 47th Leglslaturs c!f
Texas, 1941, page 729, apparently places new and added duties
upon the Commissioners" Court of Dallas County with respect
to the maintenance of the public roads of safd countJ not
imposed on them by general laws. If the prorision of said
Hon. H. Pat Edwards, page 7 (O-4827)
road law with reference to the traveling expenses of the
commissioners~ court quoted in your letter had been limited
to traveling expenses of the commissioners' court with
reference to the maintenance of the public roads of the county
and payment limited to the Road and Bridge Fund of the county
such provision would have been valid. But the -provision under
consideration here is clearly not so limited. Under the
unequivocal assertions of the court in the case of Jameson
v. Smith, supra, and authorities therein cited, it is our
opinion that said provision of the Dallas County Road
Law, quoted in your letter, allowing traveling expenses to
the County Judge, County Auditor and County Commissioners
for traveling expenses on official business generally, is
not a road law, and is unconstltutlonal as a special or local
law attempting to regulate the affairs of a county where a
general law could be made applicable.
We answer your questions as follows:
1. Your first question is answered in the
negative. The trip to California made by the County
Judge as related in your letter was not on "official county
business" and the County Judge could not be paid traveling
expenses therefor under any statute. See opinions Numbers
0-4483 and O-4529.
In answer to your second question it is our
opinion thi)iArticle 3912e (l), V.A.C 3 authorizes the
payment of the legitimate traveling'expdk!jesof the County
Judge incurred on "official county business". In further
answer to your second question it is our opinion that Article
3912e (l), V.A.C.Z., does not authorize traveling expenses
for the county commissioners. This article applies to the
county officers who are compensated under the Officers'
Salary Law and are paid from the Officers' Salary Fund.
Apparently the salaries of the County Commissioners of Dallas
County are oaid from the Road and Bridge Fund of the County
under Section 2 of the Dallas County Special Road Law.
Article 3912e (l), V.A.C.S., clearly is not applicable to
the County Commissioners of Dallas County, Texas.
3. Sections (a) and (b) of your third question
are each answered In the negative.
We wish to express our appreciation for the
excellent brief furnished us by you, which has been very
helpful in thls matter.
-.
.’
..
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Hon. Ha Pat Edwards, page 8
Very truly yburs,
RTTORIIEYGEMERALOFTEXAZ
By /s/Wm. J. Fanning
Wm. J. Fanning
Assistant
WJF:AMM-dhs
ENCLOSUlC3S
APPROVED OCTOBER 1, 1942
/s/ Gerald C. Mann
AlTOFiNEYGENERALOFTE~S