Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
June 16, 1983
JIM MATTOX
Attorney General
Honorable Margaret Moore Opinion No. JM-39
Supreme Court Building Travis County Attorney
P.O.BOX 12548 P. 0. Box 1748 Re: Salary of Travis County
Austin. TX. 76711. 2546 Austin, Texas 78767 Auditor
5121475-2501
Telex 9101674-1367
Teleccaier 51214750266 Dear Ms. Moore:
You have requested an opinion from this office regarding the
1607 Main St.. Suite 1400 salary properly to be paid the county auditor for Travis County. YOUl-
Dallas. TX. 75201-4709
2141742-6944
letter reads:
On June 28, 1982, the district judges of Travis
4624 Alberta Ave..Suite 160 County promulgated an order setting the auditor's
El Pas.o.TX. 79905-2793
annual salary at an amount equal to the salary
9151533-3484
plus the car allowance of the assessor-collector
/h of taxes for Travis County. This order was signed
LO Dallas Ave., suite 202 by all the district judges of Travis County and
Houston.TX. 77002.6986 was filed with the District Clerk, John Dickson.
7131650-0666
However, the Commissioners Court of Travis County
declined to record said order in its minutes (a
806 Broadway. Suite 312 COPY of the order of the district judges is
Lubbock.TX. 79401.3479 attached). Consequently, I would pose the
8061747-5238 following two questions to your opinion committee
for resolution:
4309 N.Tenth.Suite 6
McAllen.TX. 76501-1685 1. Is an order of the district judges
5121682-4547 setting the auditor's annual salary at the
amount of the auto allowance paid the
assessor-collector of taxes plus the salary of
200 Main Plaza. Suite 400
San Antonio.TX. 76205.2797
the assessor-collector of taxes in compliance
5121225-4191 with articles 1645 through 1650a. V.T.C.S.?
2. Can the order of the district judges
become effective and the increase paid if the
commissioners court has not caused the same to
be recorded in its minutes?
Article 1645, V.T.C.S., states that in counties having a
population of 10,000 or more a county auditor is to be appointed "who
shall receive as compensation for his services an annual salary. . .
of not more than the amount allowed or paid the Assessor-Collector of
p. 168
Honorable Margaret Moore - Page 2 (JM-39)
Taxes in his county." The auditor's salary, according to the statute,
is to be "fixed and determined" by the district judges having
jurisdiction in the county.
Prior to 1955, the above emphasized portion of the statute read,
"of not more than the annual salary allowed or paid the Assessor and
Collector of Taxes in his county." In that year "the amount allowed
or paid the Assessor-Collector" was substituted for "the annual salary
allowed or paid the Assessor and Collector." Acts 1955, 54th Leg.,
R.S., ch. 414, at 1117. Cf. Attorney General Opinions MW-445 (1982);
O-826 (1939). To determine the maximum salary that can be paid the
county auditor, we must first determine what is meant by the language
"the amount allowed or paid the Assessor-Collector of Taxes."
Since 1935, the Texas Constitution has required most counties to
compensate district and county officers on a "salary" rather than a
"fee" basis. Tex . Const. art. XVI, 561. A statute, article 3912k,
V.T.C.S., now authorizes the county commissioners court to set the
salaries, expenses, and other allowances of most county officers,
including tax assessors-collectors. It repeals parts of laws in
conflict with its provisions.
Prior to the enactment of article 3912k in 1971, the salaries and
expenses of tax assessors-collectors were governed by various other
statutes. See V.T.C.S. arts. 3883, 3883~. 3883h, 3899, and 3912e;
Attorney General Opinion V-607 (1948). Formerly, the commissioners
court could also allow county officers additional compensation (over
and above fixed salaries and fees) for "ex officio" services rendered.
V.T.C.S. art. 3895. Taylor v. Brewster County, 144 S.W.2d 314 (Tex.
civ.
--. -
Ann. - --El Paso
--rr- _-__ 19&O.
-_ ._, wr*t
..--. dicm'd
---... - iudemt
-- .-_ cot-.).
-.. See Wichita
County v. Robinson, 276 S.W.2d 509 (Tex. 1954); Robinson v. Wichita
County, 106 S.W.2d 769 (Tex. Civ. App. - Fort Worth 1937, no writ).
See also Nichols v. Galveston County, 228 S.W. 547 (Tex. 1921). Cf.
V.T.C.S. art. 1672 (comnensation of auditor for services rendered to
an improvement district); Attorney General Opinions H-1251 (1978)
(compensation of county auditor may not be set higher than salary paid
tax assessor-collector); H-809 (1976) (supplemental salaries of
certain county auditors).
The 1955 amendment to article 1645 assured that such "ex officio"
allowances would be counted in determining the tax assessor-
collector's total compensation. The aim was to permit the auditor to
receive as much compensation for his services as the tax
assessor-collector received for his -- if the judges considered it
proper. We do not think, however, that it was the intention of the
legislature in 1955 to count bona fide expense allowances or
reimbursements in arriving at such a determination. In our opinion
the phrase in article 1645, "not more than the amount allowed or paid
the Assessor-Collector of Taxes," means not more than the amount
p. 169
Honorable Margaret Moore - Page 3 (JM-39)
allowed or paid the assessor-collector as compensation for his
services. See Attorney General Opinions H-1266 (1978) (not to exceed
salary of tax assessor); C-531 (1965) (compensation equals base pay
plus additional salary for services rendered). Cf. Attorney General
Opinions V-832, V-859 (1949) (annual salary of county auditors based
on annual salary of tax assessor-collector).
"Compensation" for services and "expense reimbursements" are not
the same thing. See Attorney General Opinions H-789, H-909 (1976). A
"salary" is compZZatio* for services; an expense reimbursement is
not. _See Harris County v. Hammond, 203 S.W. 445 (Tex. Civ. App. -
Galveston 1918, writ ref'd) (allowances for expenses of care of
prisoners). See also Veltman v. Slator, 217 S.W. 378 (Tex. 1919);
Anderson County v. Hopkins, 187 S.W. 1019 (Tex. Civ. App. - Galveston
1916, no writ); Attorney General Opinion WW-513 (1958). Cf. McGuire
v. City of Dallas, 170 S.W.2.d 722 (Tex. 1943) (no law then existed
which would authorize a city to make cash payment other than as
compensation). In our opinion, car allowances for tax
assessors-collectors are not part of the "amount allowed or paid" tax
assessors within the meaning of article 1645 for purposes of
determining an auditor's salary, if the allowances are in the nature
of bona fide expense reimbursements. Another statute, article 1650a,
V.T.C.S., makes express provision for reimbursing the travel and
automobile expenses of county auditors. -See Attorney General Opinion
NW-201 (1980). Cf. Geyso v. City of Cudahay, 34 Wis. 2d 476, 149
N.W.2d 611 (1967)statutes prohibiting increases in salary do not
prohibit increases in expense reimbursements).
We believe the district judges are precluded from treating the
allowance as "compensation" for purposes of fixing the compensation of
the county auditor. For that reason, we do not believe the order of
the district judges setting the auditor's annual salary was in
comnliance with article 1645. V.T.C.S.. and associated statutes. See
Vitbpil v. Ware, 280 S.W.2d 37R (Tex. &iv. App. - Waco 1955, no wrix
Attorney General Opinion H-1251 (1978).
Turning to your second question, article 1645 requires that:
[t]he action of the District Judge or District
Judges in determining and fixing the salary of the
County Auditor shall be made by order and recorded
in the minutes of the District Court of the county
and the Clerk thereof shall certify the same for
observance to the Commissioners Court which shall
cause the same to be recorded in its minutes.
In our opinion, a valid administrative order by district judges
is not rendered ineffective by the failure of the commissioners court
to record it in its minutes. Inasmuch as article 1645 limits the
p. 170
. .- .
Honorable Margaret Moore - Page 4 (JM-39)
authority of district judges with respect to the setting of the
auditor's salary, however, an order by district judges exceeding that
authority is not within the statutory requirement.
SUMMARY
The district judges of Travis County are not
authorized to treat the automobile expense
allowance of the county tax assessor-collector as
an "amount allowed or paid" the tax assessor-
collector for purposes of fixing the salary of the
county auditor. A valid order by district judges
fixing the salary of the county auditor is not
rendered ineffective by the failure of the
commissioners court to record it in its minutes.
J ,JGJ?x
Very truly you s
&
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Colin Carl
Nancy Sutton
Bruce Youngblood
P. 171