            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
