Untitled Texas Attorney General Opinion

I -. , E *a ORNEY GENERAL OFTEXAS Honorable V. P. Sexton CoiintyAttorney Orange County Orange, Texas Attention: Hr. 3. IT. Adams Assistant Dear Sir: Opinion No. o-5968 -~ Re: Authority of Constable of Ora’bge County to appoint deputies ana incur allowable expenses of of- fioe. We have received your recent pequest for an opinion on the following subject z Authority of Constable of Orange County to appoint deputies and operate his office upon an expense account to be allowed by the Commlsslon- ers Court, to the same extent as the sheriff. Orange County has a population of 17, 382, according to the 1940 Federal Census, and Is operhttingon a fee basis in the compensation of its county and precinct officers, accord- ing to the records of the State Comptroller’s Office. Article 3902, Vernon’s Annotated Civil Statutes, pro- vldes, In substance; that whenever any dlVtriCt, county or precinct offFoer requires the service of deputies such officer shall apply to the Commissioners t Court for authorltg to ap- point such deputies, and that such court shall make its order authorlzlng such appointment and fix the compensatfon,to be paid such deputies and determine the number to be appointed as in the discretion of said oourt may be proper. ,(‘, ~,’ Article 687ga, Vernon’s Annotated Civil Statutes, reads, in part, as follows : “Sec. 1. The duly elected Constable in eaoh Justice Precinot having a eltg or town of less than eight thousand f8;000) population according to the preceding Federal Census may appoint 6ne (1) Deputy and no more; and each Justice Preoinct Honorable W. P. Sexton, page 2 having a city or town of eight thousand (8,000) and less than forty thousand (40,000) population accord- i to the preceding Federal Census may appoint two (3 Deputies and no more * and in each Justice Pre- cinct having a town or city of forty thousand (40,000) population or more accordi to the preced- ing Federal Census may appoint five"i5) Deputies and no more, and each and every instance said Deputy Constables shall qualify as required of Deputy Sheriffs. "Sec. 2. When the Constable In each and every Instance named and described in the preceding section of this Act shall desire to make appointment of a Deputy or Deputies, as the case may be, said Constable shall first make written application to the Commls- sloners' Court of his County showing thatit is neces- sary for such Constable to have the Deputy or Deputies requested In order to properly handle the business of his office .originatingin the Precinct ln which such Constable has been eleeted, gfvlng the name of each proposed appointees; and if the Commissioners' Court shall find that the Constable is in need of the Dep- uty or Deputies requested to handle the business originating in his Precinct, then and In that event, and in that event only, the Commissioners' Court shall approve and confirm the appointment of the Deputy or Deputies provided by this Act." Article 3902, at the time of Its passage having sub- stantially the same provisions as po?nted out herernabove, was enacted In the form of an amendment by the 42nd Legislature in Regular Session and approved May 26, 1931, (General Laws of Texas, 1931, Chap. 214, pe 364). Thereafter at the same session, the said 42nd Legls- lature enacted said Article 6879a, which was approved May 27, 1931 (General Laws of Texas, 1931, Chap. 280, p. 503). In the case of State v. Johnson, 52 S.W, (2d) 110 (writ dismissed), it was said in regard to Articles 3902 and 6879a, as follows: "Two days after the passage of article 3902, an amendment was passed thereto,~article 68,79a, which does not affect the provlsi~onsof the former, except to provide for the number of deputies that can be appointed. I . e *'I Therefore, it seems that the appointment of deputy con- stables in your county should be made under'authorlty of both said Articles (3902 and 6879a), and the number of deputies limited as provided in Section 1, of said Article 6879a. Honorable W. P, Sexton, page 3 o-5968 As to expense accounts and expenses of office, in re- gard to the constable and sheriff of your county, we refer you to the following articles: Article 3899, V. A. C. S., provides, in part, as fol- lows: ure iffaiff;;,theclose of each month of his ten- each officer named herein who 18 compensated 0; a fee basis Shall make, as part of the report now required by law, an itemized and sworn statement of all the actual~and neces- sary~expenses Fncurred by him in the conduct~of his office such as stationery, stamps, telephone, prem- iums on offFeialsl bonds, including the cost of surety bonds for his deputies, premium on fire, bur- glary, theft, robbery insurance protecting public funds, traveling expenses, end other necessary ex- penses; provided, t.hatin addition to the officers named herein, the county treasurer, county auditor, eountg road eommlssioners, County school superinten- dent, and the bide and animal inspector shall like- wise make a report on the premiums on officials' bonds, including the cost of surety bonds for any deputies, and said premiumsshall be subject to pay- ment out of the fees of safa office, as herein otherwise provided for the officers namecl;and pro- vide3.further that if any of the officers so desig- nated aYe on a sala?g rather than a fee basis, then all such bond premiums for officers and their deputies shall be paid from the General Fund of the county, The Commissioners Court of the county of the sheriff's residence may, upon the written and sworn application of the sheriff stating the necessity therefor, pUrchase equipment for a Bureau of Criminal Identiff@atlon such as cameras, finger- print CaPaS, inks, chemicals, microscopes, radio and laboratory equipment, filing Cards, filing cabinets, tear gas, and other equipment in keeping with the system in use by the Department of Public Safety of this State or the United States Depart- ment of Justice and/or Bureau of Criminal Identlfi- cation. If such expenses be Lncurred In connection with any particular case, such statement shall name such case. Such expense account shall be subject to ,theaudit of the county auditor, if any, other- wise by the Commissioners Cburt; and if it appears that any item of such expense was not incurred by such officer or such item was not a necessary ex- pense of office, such item shall be by such auditor Honorable W. P. Sexton, page 4 o-5968 or court :rejected,-._. in vhich -. case"the collections of such item may be adjudicated Inany court of com- petent jurisdldtlon. The amount of salariespaid to assistants and deputies shall also be clearly shown by such offycer, glovingthe name, position, and amount paId each; andln no event shall any officer show any~greeter amount than actually paLd any such assistant or deputy. The amount of such expenses,/tbgether with the amount of salaries paid to assistants, deputies, and clerks, shall be paid out of the fees earned by such of- ficer. The Commissioners Court of the county of the sheriff's residence may, upon the written and sworn application of the sheriff stating the necessity therefor, allow one or more automobiles to be used by the sheriff in the discharge of his offlci.alduties, which, Lf purchased by the county, shall be bought in the manner prescribed by law for the purchase of supplies and pald for out of the General Fund of the county, and they shall be and remain the property of the county. The expense of maintenance, depreciation, and opera- tlon of such automobiles as may be allowed, whether purchased by the county or owned by the sheriff or his deputies personally, shall be paid for by the sheriff and the amount thereof shall be reported by the sheriff, on the report above mentioned, in the same manner as herein provided for other expenses. As,amended, Acts 1941, 47th Leg., P. 1390, chap. 629, FJ1." Article 3899b, W. A.C.S,, provides, in part,as follows: %ection 1. There shall be allowed to County Judges, Clerks of the District-and County Courts, Sherlffs, County Treasurers, Tax Assessors and Collectors, such books, stationery, Including blank bail bonds and blank complaints, and office fur- niture as may be necessary for their offices, to be paid for on the order of the Commissioners Court out of the County Treasury; and suitable offices shall also be provided by the Commissioners Court for said officers at the expense of the county. And such books and stationery as are neces- sary in the performance of their duties shall also be furnished Justices of the Peace by said CommIs- sioners Court. Provided all purchases herein must be approved by Commissioners Court, and must he made under the provisions of Article 1659, Revised Civil Statutes of Texas, 1925," Honorable W. P. Sexton, page 5 o-5968 You will note that constables are not mentioned in said Article 3899b. Article 3891, v. A. C. S., provides, in part, as follows : "Each officer named in this Chapter shall first out of the 'currentfees of.his office pay or be paid the amount allowed him under the pro- visions of Article 3883, together with the sal- aries of his assistants and deputies, and author- ized expenses under Article 3899, and the amount necessary to cover costs of premium on whatever surety bond may be required by law. If the cur- rent fees of such office collected in any year be more than the amount needed to pay the amounts above specified, same shall be deemed excess fees, and shall be disposed of in the manner hereinafter provided." The authorized expenses which may be deducted under Article 3899, supra, are such expenses as are enumerated there- in, and only those expenses which are authorized under the statute can be deducted. Such expenses are to be paid from fees earned by the officers, and are allowed to both, con- stables and sheriffs. The i~temsof expense mentioned in Article 3899b, supra, , are allowed only to the officers therein mentioned by the ex- press terms of said article, therefore, constables would not be allowed such expenses. Trusting this is satisfactory, we are Yo.ursvery truly ATTORNEX GEI\TERAL OF TEXAS By s/Rcbert L. Lattimore, Jr Robert L. Lattimore, Jr. Assistant RLL:fo:wc APPROVED APRIL 29, 1944 s/Gee. P. Blackburn ATTORNEY GENERAL OF TFXAS Approved Opinion Committee By s/BWS Chairman