                              OF     EXAS
GROVERSELLRRS                 ~USTXN 11. TEXAS


   Hon. Charles   R. Martin        Opinion NO. 0-6551
   county Auditor                  Re,: Payment of traveling   expenses
   Harrison. County                of the Commissioners’ Court of
   Marshall, Texas                 Harrison County, under the provisions
                                   of Houss Bill Noi 84, 49th Legisla-
                                   ture and under the provisions   of the
                                   Harrison County Special Road Law’
   Dear sir;                       (1931).
             We are in receipt   of your letter of recent date reques-
   ing the opinion of this department on the above stated matter.
   We quote from your letter   as followsr
             “The last Legislature  passed an Act, same being
        H.B. No. 84, amending Article 2350, Title 44, R.C.S.,
        and other amendments, whereby they rece,ive raises in
        pay according to assessed valuations.
               “Under Section la, the Commissioners~ Court in
        each county is hereby authorized to pay the actual
        traveling   expenses incurred while traveling  outside
        of the County on official    county business never to
        exceed Three Hundred Dollars ($300.00) in any one
        year for each said official.
               “In Harrison County we have a special road law,
         enacted by the Legislature   of the State of Texas, ‘a
         great number of years back! and section 10 of said
         law provides as follows:     Each County Commissioner
         and the County Judge of said court when traveling    on
         county business relating   to the roads or highways of
         said county shall be allowed the sum of Seven (7~)
         cents per mile as traveling   expenses to be paid out
         of the Road and Bridge Fund on sworn statement at the
         end of each month; provided that the county shall not
         pay to the County Judge or any county commissioner
         in excess of Fifty ($50.00) Dollars as traveling    ex-
        .penses for any one month.’
             “The Harrison County Road Law repeals Chapter’42,
        Acts of the First Called Session of the 27th Legisla-
        ture (the same being known as the Davidson Road Law.
             “Question, under H.B. 84, would it be legal      for
        the County to pay the actual traveling expenses
Hon. Charles   R. Martin,   page 2   (O-6551)


      incurred while traveling  outside of the County on
      official county business,  in addftfon to the travel-
      ing expense allowed under OUP Speofal Road law,
      quoted above, either on business connected with the
      Road and Bridge Fund, or General Fund, and if so,
      would the County Judge be entitled   to the traveling
      expenses also as set out under H.B. 841
            “Also, where the Commissioners Court of a county
      should decide to send one of its members out of the
      county with reference  to the leasing etc., of lands
      owned by the Permanent School Fund, which lease money
      is paid to the Available School Fund, would it be le-
      gal to pay this expense out of the Available School
      Fund or should the same be paf.a out of the General
      Fund3 H.B. 84 does not say from what fond this ex-
      pense should be paid.”
            House Bill No. 812, Chapter 156, Special    Laws, Regular
Session,   42nd Legislature, 1931, Zn part provides:
           “Sec. 10. Each County Commissioner and the County
      Judge of said county (Harrison County) when traveling
      on county business relating  to the roads or highways
      of said county shall be allowed the sum of Seven (7$)
      cents per mile as traveling  expenses to be paid out of
      the Road and Bridge Fund on sworn statement at the end
      of each month; provfdea that the county shall not pay
      to the County Judge or any County Commissioner in ex-
      cess of Fifty ($50.00) Dollars as traveling  expenses
      for any one month.‘” (parenthesis   ours)
           House Bill   No. 84, 49th Legislature?   in part provides:
            “Section la.  The Commissioners9 Court in each
      county is hereby authorized to pay the actual travel-
      ing expenses incurred while traveling  outside of the
      county on official  county business never to exceed
      Three Hundred Dollars ($300) in apy one year for each
      said official.
           “Sec. 4. That all general laws or parts of general
      laws in conflict  with the foregoing 1ct, be, and the same
      are hereby expressly repealed.”
            House Bill 84 which amends Article 2350, Vernon’s AMO-
tated Civil Statutes,    is a general law relating to the salaries  of
county commissioners and the traveling    expenses of the commission-
ers’ court.    House Bill No. 812, Special Laws of Texas, Regular
Session, 1931, Chapter 156, is a speoial law applicable    to Harrison
Hon. Charles R. Martin,    page 3   (o-6551)

County;    Section 10 of said Act provides for the payment of trav-
eling expenses of the county judge and the county commissioners
when such travel is in connect ion with the roads land highways of
said county.     The enactment of a general law does not, by implica-
tion, operate as a repeal of the special law, although both laws
relate to the same subject matter.       Also, the general law is appli-
cable in all cases not embraced by the special act.         (Townsend v.
Terrell,   16 S.W. (2d) 1063; Ellis v. Batts, 26 Texas 703).       We
note, also, that House Bill No. 84, supra, by the terms of Section
4, repeals only general laws or parts of general laws in conflict
therewith;   consequently,   it would not operate as a repeal of the
special law, insofar as the same subject matter is covered in the
Harrison County Special Road Law. The special act is construed as
constituting    an exception to the general law.     (Cole v. State,
170 S.W. 1036)     It is therefore   the opinion of this department
that the provisions     of the Harrison County Special Road Law would
control with reference     to the payment of traveling    expenses of the
county commissioners and the county judge insofar as such travel
is related to the roads or highways of said county.         rt is our
further opinion that the payment of traveling       expenses, other than
travel relating    to the roads and highways of said county, should
be governed by the provisions      of House Bill 84.
            With reference   to your question as to whether the county
judge would be entitled     to traveling   expenses under the provisions
of House Bill No. 84, we note that the Act refers to “the comis-
sioners’ court” end sets the maximum amount to be paid for travel-
ing expenses in any one year for “each said official.”          In view of
the fact that the county judge and the several commissioners con-
stitute  “the commission es’ court” (Art. 2342, V.A.C.S.),        it is our
opinion that the county judge would be entitled        to actual traveling
expenses under the provisions      of Section la of House Bill 84, sub-
ject to the limitation     that the county judge’s traveling     ~expenses
in connection with the county roads and highways of Harrison County
should be governed by the provisions       of the Harrison County Special
Road Law.
                                                                        I
           With reference    to your inquiry as to the proper fund with
which to pay the traveling     expenses authorized under the provisions
of Section la, House Bill 84, this department held in Opinion No.
0-6604 that said expenses should be paid from the County General
Fund. We quote from said opinion as follows:
            “In regard to your question as to which fund the
     actual traveling   expenses should be paid from when in-
     curred under authority 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. (2a3 134) as follows:
Hon. Charles R. Martin,        page 4    (O-6551)


           II1All county expenditures lawfully authorized
     to be made by a county must be paid out of the county’s
     general fund unless there is some law which makes
     them a charge against a special fund.’
          “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.”
            With reference      to your question      as to the proper fund
from which to pay expenses incident           to the leasing   of the Harrison
County Public School Lands, we find           no constitutional   or statutory
provision   that would authorize the payment of expenses           of this
character   from the Available School Fund.
            Art.   2826,   V.A.C.S.,    provides:
            “It shall be the duty of the Commissioners Court
     to provide for the protection,       preservation  and dis-
     position   of all lands heretofore     granted, or that may
     hereafter   be grant~tto7th;e;o~~~       for education or
     schools.    Const.,      . ,       .
            Our courts have held that the expenses of acquisition,
preservation   and sale of school lands must be paid out of the
County General Fund.    (Brazoria County v. Paagitt (Civ.App.3 160
S.W. 1170, (error refused);    Taber vs. Dallas County, 106 S.W. 332;
Dallas County v. Club Land and Cattle Company, 66 S.W.. 294;
Pulliam v. Runnels Co., 15 S.W. 277; and Tomlinson v. Hopkins
County, 57 Tex. 572).
           In the case of Dallas County v. Club ‘Land and Cattle
Company, supra, the Supreme Court, in justifying.    the placing of
the expenses of administering   the school fund.. as a charge against
the General Fund of the county, used the foll.ing      language:
            1’. . . . As to the reason of the provision;     it
     may be urged that, since the county is made a mere
     trustee,    it is unreasonable to suppose that it was
     intended to charge it in its individual      capacity
     with the expense of administering     the trust fund?
     The answer is that while in legal contemplation,
     the county is but a trustee,     and the school fund the
     beneficiary,    the county has an important interest      in
     the maintenance of public schools within its limits;
     and that it is not unreasonable that the framers of
     the constitution    should have deemed it politic     to make
, .




      Hon. Charles   R. Martin,   page 5   (o-655l)


           the expense of administering  a fund set apart for
           the support of public schools in the county a
           charge upon its general revenues.   Since the lands
           are the gift of the state for the special benefit
           of the educational  interest of the county, it is
           not a hardship to require the county administration
           to hear the expense of converting  the laud into
           money. . .'I
                In view of the foregoing  authorities, you are therefore
      advised that expenses in connection with the leasing of school
      lands should be paid from the County General Fund.
                We trust that     the above and foregoing   satisfactorily
      answers your inquiries.
                                            Yours very truly,
                                            ATTORNEY
                                                   GBNERAL
                                                         OF TEXAS
                                           By /s/ J. A.~ Ellis
                                           J. A. Ellis,  Assistant
       APPROVBD JUL 2, 1945
      /a./ Grover Sellers
       ATTORNEY GENERAL   OF TEXAS
      APPROVED:OPINIONCOMMITTEB
      BY:     BWB , CHAIRMAN
      JAE:&J:wb
