# 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

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200 Main Plaza. Suite 400 San Antonio.TX. 76205.2797 5121225-4191 HonorableMargaretMoore TravisCountyAttorney P. 0. Box 1748 Austin, Texas 78767 OpinionNo. JM-39
Re: Salary of Travis County Auditor
Dear Ms. Moore:
You have requested an opinion from this office regarding the salaryproperly tobe paid the countyauditor for Travis County. YOUlletterreads:

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 orderwas signed by all the district judges of Travis County and was filed with the District Clerk, John Dickson. However, the CommissionersCourt 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-collectorof taxesplus 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 commissionerscourt has not caused the same to be recorded in itsminutes? Article 1645, V.T.C.S., states that in counties having a population of 10,000or more a countyauditor is tobe appointed "who shall receive as compensation for his services an annual salary.
. . of not more than the amount allowed or paid theAssessor-Collectorof

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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 emphasizedportion 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 theAssessor-Collector"was substitutedfor "the annual salary allowed or paid the Assessor and Collector." Acts 1955, 54th Leg., R.S., ch. 414, at 1117. Cf. Attorney General OpinionsMW-445 (1982); O-826 (1939). To determine the maximum salary that can be paid the county auditor,we must first determinewhat is meant by the language "the amount allowed or paid theAssessor-Collectorof Taxes." Since 1935, the Texas Constitutionhas requiredmost 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 conflictwith itsprovisions. Prior to the enactmentof article 3912k in 1971, the salariesand expenses of tax assessors-collectorswere 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 salariesand fees) for "ex officio" servicesrendered. 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 (comnensationof auditor for services rendered to an improvement district); Attorney General Opinions H-1251 (1978) (compensationof countyauditormay not be sethigher than salarypaid tax assessor-collector); H-809 (1976) (supplemental salaries of certain countyauditors). The 1955amendmentto article 1645assured 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 thephrase in article 1645, "notmore than the amount allowed or paid the Assessor-Collector of Taxes," means not more than the amount

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allowed or paid the assessor-collector as compensation for his services. See Attorney General OpinionsH-1266 (1978) (not to exceed salary of tax assessor); C-531 (1965) (compensationequals 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 salaryof tax assessor-collector). "Compensation"for services and "expense reimbursements"are not the same thing. SeeAttorney GeneralOpinionsH-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 Countyv. 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.d722 (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-collectorsare 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 expensereimbursements).
We believe the district judges are precluded from treating the allowanceas "compensation"forpurposesof fixing the compensationof the county auditor. For that reason,we do not believe the order of the district judges setting the auditor's annual salary was in comnliancewith article 1645.V.T.C.S.. and associated statutes. See Vitbpilv. Ware, 280 S.W.2d 37R (Tex.&iv.App. - Waco 1955,no wrix Attorney GeneralOpinionH-1251 (1978). Turning toyour secondquestion,article 1645requiresthat: [t]he action of the District Judge or District Judges in determiningand fixing the salaryof the CountyAuditor shallbe made by order and recorded in theminutes 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 tobe recorded in itsminutes.
In our opinion, a valid administrative order by district judges is not rendered ineffectiveby the failure of the commissionerscourt to record it in its minutes. Inasmuch as article 1645 limits the

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authority of district judges with respect to the setting of the auditor's salary,however, an order by district judges exceeding that authority isnot within the statutoryrequirement.
SUMMARY The district judges of Travis County are not authorized to treat the automobile expense allowance of the county tax assessor-collectoras an "amount allowed or paid" the tax assessorcollector forpurposes of fixing the salaryof 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 commissionerscourt to record it in itsminutes. Very trulyyou s 

# J ,JGJ?x

& JIM MATTOX Attorney General of Texas
TOM GREEN FirstAssistantAttorneyGeneral
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby BruceYoungblood AssistantAttorney General
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Colin Carl Nancy Sutton BruceYoungblood

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