The Attorney General of Texas 

June 16, 1983 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P.O.BOX 12548 

Austin. TX. 76711. 2546 

5121475-2501 

Telex 9101674-1367 

Teleccaier 51214750266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201-4709 

2141742-6944 

4624 Alberta Ave..Suite 160 

El Pas.o.TX. 79905-2793 

9151533-3484 

/h 

LO Dallas Ave., suite 202 

Houston.TX. 77002.6986 

7131650-0666 

806 Broadway. Suite 312 

Lubbock.TX. 79401.3479 

8061747-5238 

4309 N.Tenth.Suite 6 

McAllen.TX. 76501-1685 

5121682-4547 

200 Main Plaza. Suite 400 

San Antonio.TX. 76205.2797 

5121225-4191 

Honorable Margaret Moore 

Travis County Attorney 

P. 0. Box 1748 

Austin, Texas 78767 

Opinion No. JM-39 

Re: Salary of Travis County 

Auditor 

Dear Ms. Moore: 

You have requested an opinion from this office regarding the 

salary properly to be paid the county auditor for Travis County. YOUlletter reads: 

On June 28, 1982, the district judges of Travis 

County promulgated an order setting the auditor's 

annual salary at an amount equal to the salary 

plus the car allowance of the assessor-collector 

of taxes for Travis County. This order was signed 

by all the district judges of Travis County and 

was filed with the District Clerk, John Dickson. 

However, the Commissioners Court of Travis County 

declined to record said order in its minutes (a 

COPY of the order of the district judges is 

attached). Consequently, I would pose the 

following two questions to your opinion committee 

for resolution: 

1. Is an order of the district judges 

setting the auditor's annual salary at the 

amount of the auto allowance paid the 

assessor-collector of taxes plus the salary of 

the assessor-collector of taxes in compliance 

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 19&O. wr*t dicm'd iudemt cot-.). See Wichita 

binson v. Wichita 

--. - --rr- -- _-__ -_ ._, ..--. ---... - -- .-_ -.. 

County v. Robinson, 276 S.W.2d 509 (Tex. 1954); Ro 

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 assessorcollector'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 assessorcollector 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. 

Very truly you s J & ,JGJ?x 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