            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
