HonorabLe E. H. Griffin
County Attorney
Young county
Graham, Texas
Dear Sir; Opinion No. O-3710
Rer Are the charges of $1600 for posting
notices and 7$$ per mile for each
mile traveled in posting notices of
the Special Senatorial Election
legal charges?
Your recent request for an opinion of this department on the
above stated question has,~beaareceived.
We quote from your letter as follows;
"I wish to submit the following question to your
department for an opinion:
"The Sheriff of Young County recently posted
notices in each voting precinot. advertising the coming
senatorial election, and charged Young County $1.00
for each notice and 7&# per mile for each mile traveled
in posting such notioes. Is such charge a legal one?
Young County, Texas, has a population of less than
20,000 inhabitants, and the officials are compensated
on R fee basis."
Articles 2950 and 2995, Vernon's Annotated Civil Statutes,
read as follows;
"Article 2960. The county judge shall cause notice
of a general eleotion or any special election to be
published by posting notice of election at eaoh precinct
thirty days before the eleotioni which notice shall state
the time of holding the election. the office to be filled.
or the question to be voted onl provided that in local
opt,ion,stock law and road tax elections, or any other
special election specially provided for by the laws of
this State, the notices of election shall be given in
compliance with the laws governing said eleations respec-
tively. If a vacancy occurs in the State Senate or House
of Representatives during the session of the Legislature,
or within ten days before it convenes, then twenty days
.-
Honorable E. H. Griffin, page 2 O-3710
notice of a special election to fill such vacancy shall
be sufficient. Posting notice of an election shall be
made by the sheriff or a constable, who shall make re-
turn on a copy of the writ, how and when he executed
the same."
"Article 2995. The sheriff or any constable for
serding copies ol t!:curder desjEnating the hounds of
election precincts, or the el,eotionjudges, posting
notices, and for serving all other writs or notices
prescribed by this title, shall be paid the amounts
allowed by law for serving oivil process. For deliver-
ing election supplies to precinot judges, when they are
not obtained by such judges in person, the sheriff or
constable shall be paid such amount as the commissioners
court may allow, not to exceed two dollars for each
election precinct."
Article 3933, Vernon’s Annotated Civil Statutes, reads in part
a5 follows:
"Sheriffs and Constables shall receive the following
fees:
(1
. . . .
"Posting any other notices required by law and
not otherwise provided for . . . . . . .#l.OO
". . . I
"For traveling in the service of any civil process,
Sheriffs and Constables shall receive seven and one-
half (7%) cents for each mile going and coming; if two
or more persons are mentioned in the writ, he shall
charge for the distance actually and necessarily traveled
in the service of same.
u
“. . . .
Article 3087, Vernon's Annotated Civil Statutes, requires the
Governor to order an election in case a vacancy occurs in the represen-
tation of thj,sState in the 1JnitedStates Senate, and Article 3088,
Vernon's Annotated Civil Statutes, provides in part, "Every law reg-
ulating or in any manner governing elections or the holding of primaries
in this State shall be held to apply to each election or nomination of
a candidate for a TJnitedStates Senator so long as they are not in con-
fiict with the Constitution of the United States or of any law or
statute enacted by the Congress of the United States regulating the
election of TTnitedStates Senators or the provisions of this law."
- -
Honorable E. H. Griffin, page 3 O-3710
In the case of Nelson v. State, 75 S. W. 502, it is stated
'by posting as required by law is meant that the notices must actually
be posted the requisite number of days before the election,is held.
The fact that the notices may,have been subsequently torn or blown down
would not affect the validity of the election. . .It
We quote from the ease of Bigham v. state, 275 s. w. 149, as
follows:
"A sheriff is entitled to such fees as the statutes
authorize, and for that reason the fact that the fees
allowed may seem large in some instances or small in
other instances cannot enter into a decision concerning
the statutes authorizing them. The Legislature has enacted
the fee bill, and has fixed a maximum sum which a sheriff
is entitled to receive as fees, requiring that the sxoess
be paid into the county treasury.. The Legislature has also
enaoted laws regulating and limiting the fees of officers
from time to time. The wisdom or unwisdom of these acts
is r!ota matter for the court to determine." (This ease
was reversed on other grounds in 260 S. W. 1062.)
It will be noted that Article 2995, supra, specifically provides
that the sheriff or any constable shall be paid the amount allowed by
law for serving civil prooess for posting notices and for serving all
other writs and notioes prescribed by Title 50, Vernon's Annotated
Civil Statutes.
In view of the foregoing authorities, you are respectfully
advised that it is the opinion of this department that the sheriff or
any constable performing the .abovementioned services are entitled to
$1.00 fc'rposting the election notices and seven and one-half cents
(7$) per mile for each mile actually and necessarily traveled in per-
forming this service, in fee counties. However, if the sheriff receives
an sx officio salary as authorized by Artiole 3934, Vernon's Annotated
Civil Statutes, which provides in part as follows:
"Sheriffs shall also receive the following compensation:
11
. . .
"2 . For sunsaoningjurors in district and county courts,
serving all election notices, notices to overseers of roads
and doing all other public business not otherwise provided
for, not exceeding one thousand dollars per annum to be fixed
by the ccmaissioners court at the same time other ex officio
salaries are fixed, and to be paid out of the general funds
of the county; provided, that no such ex officio salary shall
be allowed any sheriff who had received the maximum salary
allowed by law."
Honorable E. FT.Griffin, pagq 4 O-3710
The sheriff would not he entitled to remive the $1.00 fee
for pocking the election notices or the 'F+cents per m'le necessary
and aotually traveled in posting said election notices. Tf the
sheriff reoeives no ex officio colnpensationunder nrticle 3934, supra,
he would then he entitled to the aompansation as above stated.
Trusting that the foregoing fully answers your inquiry, we
are
Yours very truly
AW:'>M:wc
Approved by s/Grover Sellers
Approved Opinion Committee By-y-91iR Chairman