## THEATTORNEYGENERAL OP TEXAS

October 17, 1958

Honorable Bill Pemberton County Attorney Hunt County Greenville, Texas Oplnlon No. ww-513

Re: May the County Commissioners of Hunt County drive and operate motor vehicles owned and maintained 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 relatDear Mr. Pemberton: ed questions.

You have requested an opinion on the following questions:

"1. May the County Commissionersof Hunt County, Texas drive and operatemotor vehicles owned and malntainedby Hunt County, Texas In the performance of their duties as road commissionersIn the building and maintainingof roads In'Hunt County, and at the same time draw each month the $75.00per month expense allowanceauthorizedunder Article 2350 n Section 2, which 1s allowed to them as County Commissionersfor expense In operation and upkeep of their private automobileswhile on officialbusinesswithin the county?

"2

. Is the $75.00per month allowance for traveling expense and autbmnbllcdepreciation,which 1s authorizedunder Article 2350 n Section 2 considered
as an expense of office, or Is such allowance consldered as salary, and If so,would the voting by the court of such $75.00 per month allowance to themselvesbe the equivalentof 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~~ommlasloners la ggvernedby the provisions ofHonorable Bill Pemberton,page 2 

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Article 2350 and Section 2 of Article 2350n,Vernon's Civil Statutes. Section la of Article 2350 provides as follows:

"Sec. la. The CommissionersCourt In each county is hereby authorized to pay the actual traveling expenses Incurredwhile traveling outside of the county on official countybusiness never to exceed Three HundredDollars ($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 CommissionersCourt Is hereby authorized to allow each member of the CommissionersCourt the sum of not exceeding Seventy-five ($75.00)Dollars per month for traveling expenses and depreciation on his automobile while on officialbusinesswithin the county. Each member of .suchCommissionersCourt 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 countiesnot furnishing an automobile, truck, or by other means providing for the traveling expenses of its commissioners,while on official businesswithin the county."

It has been held by this office on nr'merous occasions that under Section la of Article 2350, county commlsslonersare entitled only to actual and necessary traveling expenseswhile traveling outside the county on officialbuslr.ess. Attorney General's OpinionsV-1344 (1951),V-200 (1947)and 0-7438 (1946). The basis for such a construction is on the language "the actual traveling expenses incurredwhile travelingoutside the county." The traveling expensesprovided for In Article 2350n are not limited to traveling expenses actually Incurred. General's OpinionV-1344. AttorneyHonorable Bill Pemberton,page 3 (WW-513)

In Attorney General's OpinionV-1344 it was held:

"It has been held that under Section la, county commissionerswere entitled only to the actual and necessary traveling expenseswhile traveling outside the county on official business. V-200 (1947)and O-7438 (1946). T~~t&~~nfo?~uch
a constructionwas the language 'theactual traveling expenses Incurredwhile traveling outside of the county.' Senate Bill 13llcontalnsno such language. On the contrary, It Is stated that the commissioners' court is authorized to allow each member of the commissioners' court a sum not to exceed $100.00 per month 'fortraveling expenses and depreciation on his automobile.'No formula is prescribed in Senate Bill 131 for determining the amount of automobile depreciation each month. Furthermore, the traveling expense Is not limited to traveling expense actually Incurred. It is therefore our opinion that it was not the lntentlon of the Legislature that the members of the commissioners' courtwould be required to show that traveling expense.

allowed them had been actually Incurred before payment could be made.

"Some statutes allowing travel expense to officers on-the basis of expenses ac~tually Incurred or distance actually traveled~expresalyrequire sworn statements from the officermakin8 the claim. for example, Articles 6877-l and 88gc, V.C.S. See,
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." ; (Empahsiaours).

In Attorney General's Opinion S-44 it was held that county commissioners could receive themaximum provided under Article 2350n for traveling expenseswithin the ,county,If during the same period of time, theywere 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 2350nHonorable Bill Pemberton,Page 4 (NW-513)

provides for traveling expenseshithin 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 $75.00per month to cover traveling expenses and depreclatlonon each.of their automobile&while used on official business within the,county. However,.yourquestions
assume that the.county commlsslonersare furnishedmotor vehicles owned and maintainedby 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 commissionersare furnishedmotor 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 allowed insection ,2of Article 235On. If, on.the other hand, the commissionersuse their private vehicleswhile traveling
on officialbusiness within the county, the commlsslonerswould be entltled..to

receive $75.005;per month 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 constitutesallowance for traveling expense and automobiledepreciation,and not salary or compensation. Attorney General's OpinionV-1344.

SUMMARY
County connnl~sloders may recieve the travelingallowance expense provided in Article 2350n for traveling on officialbusiness within the county, provided the county commlssioners~ are using their privately owned motor. vehicles for traveling on official businesswithin the county mther than the county furnishingHonorable Bill Pemberton,page 

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the commissionerswith countyowned motor vehicles for such purpose.
The allowanceprovldgd in Section 2 of Article 2350n,Vernon's Civil Statutes, constitutesallowance,for traveling expense and automobile depreciation and does not constltute 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