                                              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




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