Could a Texas commissioners court set its own car allowance after the old fixed statutory amount was repealed?

Texas AG Opinion JM-148: County Car Allowance Repeal

Plain-English summary

The Gregg County Auditor asked which of two statutes governed car allowances for county commissioners. Article 2350o set a fixed monthly figure for counties of Gregg County's size. Article 3912k instead directed each commissioners court to fix the amount of compensation, office expense, travel expense, and all other allowances for county and precinct officials and employees paid wholly from county funds. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

The Attorney General concluded that article 3912k repealed article 2350o. The repealer language in the 1971 act wiped out any local, special, or general law prescribing compensation, office expense, travel expense, or any other allowance for a covered official or employee. Because article 2350o prescribed exactly that for county commissioners, it fell in 1971. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

A wrinkle came from 1981, when the legislature updated population bracket bills and one provision purported to repeal section 3 of article 2350o, a section the AG had just concluded died a decade earlier. That could suggest the rest of article 2350o had survived. The opinion rejected the inference, pointing to language in the same 1981 chapter saying it was not intended to revive a law impliedly repealed by an earlier legislature, and to the Code Construction Act rule that repealing a repealing statute does not revive the original. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

The auditor also asked whether the county could hand out gasoline and routine automotive supplies for private cars used on county business. The AG said yes, in place of ordinary mileage, but only for the amount actually used on county business, and the county auditor could demand documentation and affidavits to establish that. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What had the old statute paid commissioners?

The opinion said article 2350o entitled each member of the commissioners court, in counties of Gregg County's population, to $100 per month for "traveling expenses and depreciation on his automobile while on official business within the county." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Was the commissioners court's discretion unlimited?

No. The opinion said the court could establish any level of automobile expense allowance "so long as such allowances are reasonably related to official county business," and that not every expense allowance is within the discretion of the individual county official. Each expense had to be fixed by the commissioners court subject to the stated limits. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Could the county buy gas for an official's personal car?

Yes, as an alternative to paying ordinary mileage. The opinion limited it to the amount of gasoline, or pro rata part of automotive supplies, actually used in county business. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

What power did the county auditor have to check these claims?

The auditor could require documentation and affidavits establishing to his satisfaction that the expenses resulted from county business. The opinion cited article 1651 on general oversight of county finances and the duty to see to "strict enforcement" of the laws, and article 1663a on the criminal penalty for failing to comply with an auditor's request for information. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Did earlier opinions limit travel allowances the same way?

The opinion cited three. MW-121 (1979) held a hospital official not entitled to unlimited use of a credit card to buy gasoline for a personal automobile. H-152 (1973) required a county court at law judge's automobile allowance to be related to official travel. H-992 (1977) said a lump sum monthly travel allowance must have some basis in fact and that travel between home and office is not official business. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Background and statutory framework

Article 2350o was first enacted in 1959 (Acts 1959, 56th Leg., ch. 221, at 502). In 1971 section 3 was amended to raise the car allowance in counties over 124,000 population from $125 to $300, a change the opinion noted was not reflected in the reported statutes. The same legislation repealed section 4, which had set the allowance in counties over 600,000 at $150. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Those amendments passed during the same legislative session that first adopted article 3912k, whose repealer appeared at Acts 1971, 62nd Leg., ch. 622, § 8, at 2019. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

The 1981 population bracket update appeared at Acts 1981, 67th Leg., ch. 237, § 145, with the non-revival provision at § 146(a). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Citations and references

• V.T.C.S. art. 2350o
• V.T.C.S. art. 3912k, § 1
• V.T.C.S. arts. 1651, 1663a, 2372h-5, 3899
• V.T.C.S. art. 5429b-2, § 3.10 (Code Construction Act)
• Acts 1959, 56th Leg., ch. 221, at 502
• Acts 1971, 62nd Leg., ch. 811, §§ 1, 2 at 2489; Acts 1971, 62nd Leg., ch. 622, § 8, at 2019
• Acts 1981, 67th Leg., ch. 237, §§ 145, 146(a)
• Attorney General Opinions MW-121 (1979); H-152 (1973); H-992 (1977)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0148
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0148.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

April 20, 1984

JIM MATTOX
Attorney General

Mr. Roy Harris
County Auditor
Gregg County Courthouse
Longview, Texas 75606

Opinion No. JM-148

Re: Whether article 2350o, V.T.C.S., relating to car allowances for members of the commissioners court was repealed by article 3912k, V.T.C.S.

Dear Mr. Harris:

You have requested our opinion regarding the interpretation of articles 2350o and 3912k, V.T.C.S., both of which pertain to expense allowances for county officials. Article 2350o provides that for counties of the population of Gregg County, each member of the commissioners court is entitled to $100 per month for "traveling expenses and depreciation on his automobile while on official business within the county." V.T.C.S. art. 2350o, § 2. It is our opinion that article 3912k repeals article 2350o and that the commissioners court is free to establish any level of automobile expense allowances for members of the commissioners court so long as such allowances are reasonably related to official county business. Article 3912k appears below in part:

[T]he commissioners court of each county shall fix the amount of compensation, office expense, travel expense, and all other allowances for county and precinct officials and employees who are paid wholly from county funds . . . .

V.T.C.S. art. 3912k, § 1.

Article 2350o was first enacted in 1959. Acts 1959, 56th Leg., ch. 221, at 502. In 1971 section 3 was amended to increase the car allowance in counties with a population over 124,000 from $125 to $300. Acts 1971, 62nd Leg., ch. 811, § 1 at 2489 (this is not reflected in the reported statutes). The same legislation also repealed section 4 of article 2350o which had set the car allowances in counties with a population over 600,000 at $150. Acts 1971, 62nd Leg., ch. 811, § 2 at 2489. These amendments were passed during the same session of the legislature at which article 3912k was first adopted, including its repealer provision:

To the extent that any local, special, or general law, including Acts of the 62nd Legislature, Regular Session, 1971, prescribes the compensation, office expense, travel expense, or any other allowance for any official or employee covered by this Act, that law is repealed.

Acts 1971, 62nd Leg., ch. 622, § 8, at 2019. Because 2350o prescribes the travel expense or allowance for county commissioners, it was repealed in 1971. In 1981, however, the legislature enacted a law which updated various population bracket bills, a provision of which purported to repeal article 2350o, section 3, which we have concluded was repealed ten years earlier. One might infer, therefore, that the portions of article 2350o not expressly repealed were still in effect. Acts 1981, 67th Leg., ch. 237, § 145, p. 559, 599. Chapter 237 also provided, however, that it was "not intended to revive a law that was impliedly repealed by a law enacted by the 66th Legislature or a previous legislature." Id., § 146(a) at 600. As we have stated, article 2350o was repealed in 1971 by the enactment of article 3912k, and there has been no action by the legislature to revive or reenact its provisions. Cf. Code Construction Act, article 5429b-2, V.T.C.S., § 3.10 ("The repeal of a repealing statute does not revive the statute originally repealed nor impair the effect of any saving provision in it.").

You also ask whether Gregg County may provide gasoline and routine automotive supplies for use by county officials in private automobiles. We believe that the county may provide gasoline and automotive supplies for personal vehicles used in county business, instead of providing ordinary mileage. The county officer may receive only the amount of gasoline or pro rata part of automotive supplies actually used in county business. The county auditor may require documentation and affidavits which will establish to his satisfaction that the expenses result from county business. See V.T.C.S. art. 1651 (general oversight of county finances and an obligation to see to the "strict enforcement" of the laws); V.T.C.S. art. 1663a (criminal penalty for failure to comply with auditors' request for information). Thus, not every expense allowance is within the discretion of the county official but each expense must be fixed by the commissioners court subject to the limitations described herein. See Attorney General Opinions MW-121 (1979) (hospital official not entitled to unlimited use of credit card to purchase gasoline for personal automobile); H-152 (1973) (automobile allowance for county court at law judge must be related to official travel); H-992 (1977) (lump sum monthly travel allowance must have some basis in fact; travel between home and office not official business); V.T.C.S. art. 2372h-5 (further authority to provide for travel allowance); V.T.C.S. art. 3899 (expense accounts).

SUMMARY

County officials may be reimbursed with in kind allowances for travel expenses actually incurred while on county business. The commissioners court of Gregg County may fix the amount of travel expense allowed to members of the commissioners court so long as the allowance is reasonably related to official county business.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by David Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton