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Honorable  R. V. Rayford
County Auditor
Rusk County
Henderson,  Texas
Dear Sir:
                                               Opinion   MO. O-7537
                                               Re:   Proper fund to be credited
                                                     when ex-County     Superintendent
                                                     repays    amounts overdrawn
                                                     on salary;    and whether
                                                     annual allowance      for office
                                                     and travel    expense    is
                                                     apportlonable     by the month.

      Xe quote   from   your   recent       letter   to this        department:
       "Tne State Department      of Education     approved
budget appropriations       of ,$3,300.00   salary   for County
Superintendent      for the year September       1, 1945 to
August 31, 1946 and a budy;et appropriation            of $300.00
for office     ? travel  expense for the County Superintendent
for the same period.
       "The County Superintendent   drew and received    the
following   sums from September   1, 1945 to and including
December 21, 1945 the date his resignation      was accepted
by the Commissioners   I Court and a successor   appointed:
      "Net Salary      Checks                             wg:g
       Withholding       Tax on Salary
       Teaciiers    Hetirement     on Salary                        63.46
       Total on Salary                                         ,     b.
       Salary    figures     112/Y% of
       $3,~00.00      (g-1-45    to 12-21-45)                 l,lG.O3
       Salary    overdrawn     for above period                               $L,S70.2'(
       let Checks on tiffice        k Travel as
       drawn by County Superintendent                     8        533.36
       Office ?.; Travel fi ures for above
       period    112/365 of &300.00                                245.42
       tiffice   E: Travel Expense ovendrawn                                      2Ii7.33
       Total Amount Due County A&inistration                                  $1,95~.15
       Fund
Ron.     R. V. Rayford     - Page 2,      (O-7537)




        “The Ex-County Superintendent        haa stated     that he is
willing    to repay thiB sum a8 overdrawn           but wants to be sure
that it is paid over to the right          fund or department.        He
also questions      the method of arriving        at the amount credited
him for Office & Travel        Expenses.     Stating    that the $800.00
approved     for Office & Travel     could all be used up in a few
months and then after       the $800.00 approved for this purpose
is gone, within       one month or within     any period     during the
school year,     that he Is entitled      to this expense regardless               of
the time it was consumed,        just so long a6 it waB used within
the school year approved.
        “We rely on the fact that the then Superintendent
figured     his Office      and Travel Expenses at the rate of $66.67
per month and was dl’awing that sum to start            with and contin-
ued this      sum of $66.67 on separate       vouchers  but drew 8 such
vouchers,at      $6667 lnatead      of 3 and a fraction    of this sum for
September,      October,     November and part of December of 1945
and also because         the Office and Travel Expense occurs each
month and not all within           one month or within    a certain    limited
time.     It would also work out as in this case If the entire
$800.00 was used up in 4 months , no funds would be available
for such operations          by the Buccessor   of a resigned     County
Superintendent.
         “Our question    is have &figured      thle in the correct
manner     by using the number of ,dayBhe       actually  served for           both
salary     and the office    and travel   expense?
      “Second question,   Is the refund of the amounts over-
drawn to be returned    to the County Administration     Fund and to
be used to reduce the assessments     against  the school district6
in preparing  the next budget, for this office      or does it go to
some other fund or State Department     of Education?”
         We submit that     the proper      way to compute    the    amount   of
salary     overdrawn  is    aB followa:
         Amount drawn on salary                              $2,616.10
         Amount earned during period
          Sept.   1, 1945, to Dec. 21, 1945
           ($3800 per annum less withholding
            tax and teacher’s       retIreme&)                  962.07
         Amount overdrawn        on salary                      b54 m
         Plus unearned      po&tion;of     withholding         ’   ’
          tax paid for December                                     12.65
         Plus unearned      portion     of TeacherCB
          Retirement     fund payment for December                   5.11
                  Total amount to be repaid                   lab    1.
                  county
Hon. E. V. Rayford        - Page 3,    10-7537)


       The unearned   portion     of the payments made in December on
withholding     tax and teacher's      retirement       should be refunded
to the county.      For the period       September      1, 1945, to December
21, 1945, the withholding         tax and teacher's         retirement    fund pay-
ments were actually     yearned,     and should not be calculated.             All
salary    checks drawn by the ex-county           superintendent       had these
two payments deducted       therefrom,      as reflected       by your exhibit
"A" .
       Thus, the amount6 actually    drawn less               the salary    actually
earned during    the period plus the unearned                 portions    of the with-
holding   tax and teacher’s  retirement   fund               payments for December,
gives the amount which should be repaid       to              the county.
      In regard    to office      and travel      expense,      Article     2700,
V.A.C.S.,   provides:
         I,       the County Board of Education       may make
         f;rih&    provisions    as it deems necessary    for office
         and traveling     expenses    of the County Superintendent;
         provided    that expenditures      of the County Superinten-
         dent shall     not be more than Eight Hundred Dollars
          ($800) per annum.).       . .I’
       It is, in our opinion,    not mandatory      upon the County
Board of Education    to provide    for the expenditure      of the
entire   sum of $800.00 for office      and traveling    expenses.                  It
is merely incumbent     upon said Board to make such provisions
as they may deem necessary       provided   the sum expended for                    such
purposes    shall not exceed G800.00.
        The statute  does not purport        to make an annual award in
the flat    sum of $800.00 per annum for said purposes,             but places
a ceiling     on such expenditures.        It does not follow that the
intention     of the statute     is to pay out the entire        sum of
$800.00 in twelve equal installments.               The law intends    that the
county superintendent        should be reimbursed       for office   and trave
expenses    actually  and necessarily        incurred,    and the expenses
for one month may be greater          than for other months.
     In other words,         the county superintendent        Is entitled
to be reimbursed    for      all authorized   expenses     incurred      provided
said expenses    do not      exceed the statutory     ceiling     of $800.00.
       In view of Articles    2700; 2700d-1,  Section   1; and 2827a,
Section   1, V.A.C.S.,    you have  correctly concluded    that the
County Administration      Expense Fund Is the.proper    fund to which
the amounts overdrawn      are to be repaid.
         Considering   the   provisions of these statutes,                we are at
a loss     to understand     how the County Superintendent                Was able to
Hon. R. V. Rayford         - Page 4,         (O-7537)

dra.u ten      separate   monthly   salary      checks      in less   than   four
months.
                                             Very   truly     yours
                                     ATTORNEYGENERALOF TEXAS
                                    /s/   William        B. Henley,    Jr.

                                     BY
                                          William B. Henley,           Jr.
                                          Assistant
APPROVEDDEC. 21,          1948

/s/   Harris     Toler                              APPROVED
                                                     OPINION
FIRST ASSISTANT                                    COMMITTEE
ATTORNEYGENERAL
                                                 BY B.W.B.
WBH:djm:elb                                        Chairman