Untitled Texas Attorney General Opinion

OFFICE OF l-NE ATTORNEY GENERAL OF TEXAG AU8TlN Hrmorablr Forrester Hanoook i '- Dietriot Attorney Wasahaohie, Terse Dear Sir: Your reoont rep ion of thi.8 De- partmont on the queetione tatod has bean reoeirsd. 3.~~3&laoo.oo Sor aaputy pear on the minute8 of of zllic county any or- eputy hire oi any deputy ax- thn at 975.00 per month. Thlr that on the 1st day of 38nuary, his deyuty before the aorrunlssion- nd intro&wed him an euoh and thare- to the oounty alerk*s office and tiled the proper paper8 a&d &x&l his.r~es inoident to deputizing thla given man, but he did not preeant Honorable Forreater Eanooek, Page B any written applloaticn to the oommlseionsre~ court with reference to the salary per month or the name of the fn&iridual desired to 8erve 88 deputy. In this partioular, the oomlcsion- ers* oourt has no written order approving the lndividusl or the salary of the lnO,ividcal who 1s olebaed to be ths deputy by this said aon- etnble. “At the expiration of twelve Donths this constable filed an expense aocount acvoring the sntlre year*8 operation. Ha did not file dur- ing 1WB a nont.hly sxpenae eccount. In hire an- me1 ex?nnse aooount is alaima the following items, to-wit: “Telephone and telegraph, printing and &s, unlforiti, siren, badge, and oar expense, misoellaneoue. ‘With referenoe to the above stated racts, we would like to ascertain the ‘following infor- mation, to-wit: “1. Ar6 the ftsnu of expense Li)fe refer- red to legal, and aa suoh, aan they be olalmad by a oonstable? “2. Can a oonstRble employ a deputy in the manner above set forth and pay him a salary not approved or agreed upon by the ooz&sslonersc court and then leeally deduot the expenres, inoi- dentel to 8uah employment from hla annual repcrt? ‘3. In auditing the annual report of a oon- stable are the unoolleated ieee rsportetd by said oonatable to be oonsidered as cash items in aa- aertslning the total gross earnin@? “4. Can a codesloners crourt under the above stated faots, allow a ooaetable no oonduot- lng h48 business a reasonable amount or expenses to be deduoted rrotn his total gross fees? An@ oan they, in turn allow suoh oarstablo a reason- able sum o? money tar deputy hire, said su& to be Honorable Forrester Hanoook, page 3 Qeduetabla from said oonetable’s total groaa reee oolleoted? In this oonneotion Ii the faote be as -5. above rtated, what would your departmont reoom- mend a8 a proper ~rooedure to enroroe the rIGhts of a giran osunty toward a oonstable acting as herein stated? ACCOrdbIg to tha, la8t Federal Cenrru (19301 $111~ County has a population of 33,936 Inhabitants. Artiole 3883, VernOB*s Annotated Civil Statutes, reads in part as r0ii0wst Vxaept a8 otherwise provided In thir Aot, the annual fees that may be retained by preoinot, county and dIetrIGt OffIoer8 ment~ioned In tt48 Artlole shell be as followar *. . l ‘3. fn oountles containing a8 many as thirty-seven thousand rive hundred and one (37,801) and not more than rixtr thousand (60,000) Inhabitants, or oontainlug a aity of ovei twenty-fire thousand (85,000) inhabitanta: . Justlos or the Peaoe and Gomtablo, Elght- ;ei Wndrsd ($1300.00) Collara laoh. n Arti 3391, Pernoncs Annotated Clril statutse, reads In part as followsr -gaoh officernamed in thla Chapter rhnll firet out of the current fee8 of his offioe pay or be paid the amount allowod him under the pro- vlsion~ of Artiolo 3383, together with the aal- lrfxts of his amilstantrr and deputlem, and author- ized exprme~ under Artiolr 3399, and the amount neoesaary to oover oortr of prealum on whatoror surety bon6 111’3.9 be required by law. rr the our- xr.t roes of 8uah otrioo oolleoted In my year be snore than the amount nesdod to py the amoMtS above opo%fid, sane oh611 be doomed exaasa ZOO@, and ahall be disposed or In the manner herofnar- tsr provided. Honorable yorrastor Hanooak, Page 4 n. . . “IA oounties soataining as many as thlrty- seven thousand, flro hundred and on8 (37,301) and not more than sixty thousand (60,200), or containing a oity or cwor twenty-rloo tho::aand (83,000) InhebItants, . . . Prsolnot offioors shall retain ono-third until suah one-third, to- gether with the amuut speclflod In Art-1010 3333, auounta to Twenty-two Hundred Wllars ($8300).s Artlsles3398, 8897, ond 3098, Vernon’s Annotated Cirll statutes reads aa follows; *Art. 3890. gaoh dirtriot, oountJr and pn- oinot officer ohs11 keep a oorreot statement of all fees oarned by him and all sums ooming Into his hands as doposits for costs, together with all trust funds place6 in the registry of the Oourt, foes of ofrlos’and oomissIoners In a book or In books to bo provided hix for that purpose, In whiah the orrioor, at the tiae when such do- posits are aade or suah foes and commissions are oarhed and whon any or all of suoh fundsshall came into his handa, shell ontsr the s-o! and it shall be tho duty or the sounty auditor In oountlos having a county auditor to annually exaa- ine the books and aooounta of such offloers and to report his rindlngs to tho next suooeedlng grand jury er diatriot oourt. In oountlos having no oeuntp auditor, It shall bo the duty of the Comml~slonsrs~ Court to sake tho esaminstlon of said books and aaoounts or hatr the 881110 made ah4 to make report to the grand jury as herelnabovo provided.” “Art. 3897. gaoh dlstrist, oounty and pro- oinot offlaer, at the close of eaoh fiaoal ysar (moeltbsr 31st) shall make to tho dlstrlot oourt or the ommty in whiah he residea a sworn rtate- 5snt In trIplIoato (on rorsux deelgned and approved by the State Auditor) a oojq of whiah atetsmnt shall be forwarded to the QtRte Audltor by tho olsrk of the dlatriot court of mid oounty within thirty (30) daya after the sams has been filed In his ofrice, and one oopy to be rii0d with the county Honorable Forrester Hancoolt, Page B auditor, ii any; othsrrwlse aaid oopy shall bo filed with the Commlssioners~ Court. said re- port shall show tho am0unt of all foes, oommIs- slone and aomp3nsations whatever oarnsd by said officer during the fiscal year; and seoondly, shall show the arwunt or rsos, aommlssions and oompensatIo;-is collected br him during the fI8- cal year; thirdly, said report shall contain an Itemized statement of all fees, o0mmIssIons and aonpensatione earned during the fiscal year whloh wore sot oollsoted, tog3ther with the 5suse of the party 0wIng eaid fees, ooizaIssIons and oom- ge55atI~nr. Said report ehall be fllod not later then February 1st following the olose of tho fiscal year and for eeah da7 after aaid date that said report remaIna not filed, said offioer shall be liable to a penalty of Twenty Five ()E6.00) Dollars, which may be recovers6 by the county In a suit brought for auoh purposes, and la addition said offioor shall bo subject to removal rromof- fioe." "Art. 8898. The fIsoal year, within the meaning of this Aat, ahall begin on January 1st or eaoh year; and oaah dIstrIct, oounty and pre- oinot offloer shall ii10 hIa report and make tho final setslemont required In this Aot n0t later than February 1st Of eaah year; provldod, how- ever, that ofrioers reoelving an annual salary as oompansatlon for their s3rvloas shall, by the alose of each month, pay Into tho orriaers* salary Fund or funda, all fees, ooamIrsIom and oomp6tn- sation eollaotod by him during raid month. Whon- ev3r euoh orricer serves for a fraotlonal part of tho fiscal year, he shall novortheleos fllo his report and roeke final sottlemsnt for suoh part Of ths year as ha s3rte8 and shall be entitlsd to suoh proportlonste part of his ooapensatlon as tho the r0r Ns samI bears to the entire year." yaragnph (a} or Art1018 JSQ9, Vbmon's Annotated c1v11 Statu~tos, reads as follows~ 3(a) At the cloee of eaoh month of his tenure of orrlao eaoh offloer named horeia who Honorable Fbrrester Hancook, Page 6 18 eoixpenaated on a fee basis shall I;iake aa part or the report now requlrea by law, an ltsmized and sworn strte;ant of all the actual and neceeeary exponaes Incurred by bin ln the conihct. of h:s office, such as stationery, stanpa, telephonr, preaiuae on offlaials~ bonde, iraludlng the cost of surety bonds Sor his Depu- ties, prenriukzion fire, burglary, theft, rotbery insurance protecting public funds, traveling ex- pm5es ana other neeessnrp expenses. The com- missioners’ Court of the aounty of the GherlfPs reriaenoe may, upon the written ana sworn ap- pliaatlon of the Sheriff rtating the necessity t herefor , purchase equipuent for a bureau of .e,_.- criinlnal ldentlficstioa such as oaneraa, finger print cards, in&a, ahmiaalu, miorosoopes, radio and laboratory equipment, filing cards, fiLlng cabinets, tear gas and other equlpm3nt in keep-. lng with the ayatem in use by the Department of ?ublle Safety of this State or the United States Department of Justice and/or Eursau of Criminal saontiiioation. If such expenses be inourrea in aonneation with a;ly particular aam, suet-, atatcment shall name such ease. Such expense aa- count ahall be subjeot to the audit of the County Auditor, ii any, otherwise by the ~ommla- aloners’ Court; and if it appeara that any ltea of such expense wae aot 1nOUrred by suah oftieer or suah item was uot a neoeasary expense of of- fice, suah it&m aball be by such auditor or oourt rejected, in nhlah ease the colleotlona of euah item 5ay be aajuaioatra in any 00urt of ocmpetent jurisdiction. The aaouat of salaries paid to Aeeistants and Deputies nhall also be olearly ahowu by such offiaer, giving the aam, position and amount. said eaoh; arid in no event shall any ofilcer show any greater amount than actually paid any suoh AS8i8tant or Deputy. The amount of 8uoh expmaes, til5ether with the amount of salaries paid to Assistanta, Deputies and Clerke shall be pa/d out of the fees earned by ouoh oiiicer. The Coainlseioners* court or the oounty of the Sherlifts resi2encs L;ay, upon the written and 5worn applloa- tlon of the Sheriff stating the necessity therefor, allow one or gore autoolobileei to be u&w&by tha sheriff ic the dlaoharge of hle official duties, whloh, if purobaaed by the Oowty, shall be bought E@norabls Porreater Banoook, Pago 7 in the mannor preooribd by law for the purohass 0r ruppllee and paid r0r out or the f#enoral muid of the oounty and they shall bo and raasin the property of the oounty. The sxpenao of malntsn- anae, dbproolatlon and operation of ruoh autoao- bile8 as may bo 6llows6, whether purohaseb by the oounty or mined by the Sherlrr or his Deputie8 psr8onall.y. shall be paid ror by the Sheriff aad the amount thonof 8hall bm reportad by ths 6herl?r, on the report above mentlonod, in the oame mmner a8 honln prorldoU for other sxpsnsss.* Artlsls SOOS, roaU8 in part a8 follow81 *whoaover any dl8trlot. oounty or preolnot ofriosr 8hal.x rspulrs the 8enloos 0r drputiar, sS8i8t- antr or olorkr ia ths Qorformanoq o? his dutlss he &all appll to ths aountr 0omals*lonorr~ Court ot his oounty for authority to appoint ruoh deputhr, assistants or olerks, rtatin@ by swern applieatloa ths number nsedsd, the po8itlon to be rlllod aB4 the tkmount to be paid. Said lpplloation shall bo ao- oompanlod by a statement showing ths probable re- ooipts rrom rs08, 00a8~18s10ns and ooapwmatlon to be oolleotod by wld oSflor during the flsoal mar and the probable Ul8borssaent8 rhioh shsll looluds au ralariar and expen8*8 or wd orrioe) and raid CoUrt 8hall make it8 Order aUth@riZing ths lpQOint- ment 0r suoh daputie8, ,a*airtantr and olerk8 an6 rix the ooDqmis~tlonto ba paid thar within the llmltatlon8 hsreln prseoribo4 and determlno the num- ber to be appointed a8 in the dlroretlon o? raid aourt may be prowrg provldsd that in II@ osse r&all tho Coamlo8loner8~ Court or any memberthenof at- tempt to laflusnoe th8 lppolntwnt Of any porron a8 deputy, assistant or olerk ln any ~ffloe. Upon tha entry of 8uOh ordqr th8 ofiloera applyin0 for ruoh assl8tants, deputies or olerkl shell ba ruthorissd to appoint them; provided Mat said oo~psnsatiQn ehall not exossd the maximwn amount hsrrlnaiter 8et out. T& oompensatlon whioh may b8 allowsd to ths depUtifJO,a88i8tWlt8 Or Ohrk8 above pameA iOr their servloer shall bs a reasonable 011s. net to SxOosb the r0ii0wing amOWit8: . . .* _ fx%2 Honorable Forreetar Emcook, ?wge B The 8alary of a oonstabla in Ellis Count umlsc Artlale 3803, supra, la Eighteen madred Dollar8 ( %leoo.00) pZW one-thlrb Of the lees OOllaOtOd in 020088 of 8uah amount 0s ralary, as provideb in Artlalo 3891, 8upra, 80 that such total ealary ahall not exoesd the sum of Twanty- two HunUred Dollar8. In this oonneotlon w4 quot4 irom our Opinion No, O-131, a8 fOllOW8: We oonstrue Artlola 3eJO1to mean that in oomputln(lthe exoess f408 to be allow44 these orrioers it 18 not p4rmlralbl.eto ooapute ona- third or all fees oolleotod but only one-third of suoh feee in axoees of end above $1,600.00. That la to 8(L7, if the total re0s oolleatea should be ~3,000.00, the Juatloe or the Peecre and Constable would be eatltl,sd to retain one- third or 01,EOO~OOwhloh would be the Bum of ~400.00, thereby rnaklng the total salary and exoew fee8 allowed to euoh offloer8 to be the 8~ 0s $2,200.009= In t&e ease of Pierson, Juetlao of the Woo, et al., v. Galvseton (loumy, 131 8.8. (26) 27, referring to Article Ea899, it was helb, amon@ other thiQ$8, that the pur- p080 0s the statute requiring aouoty 0rrioer0 to nuke a lconthly statement of expeneae inaurred in the oonduot of their orrioea Wa8 to provide a mean6 0s asosrtalning the oorrrotaees of ruoh exgxmse Itune saoh month a8 thop are lnourrea and that the aotual expensea paid or lnourred by auoh offloers oonstltute the measure of the oiflalalia right to reooup5ent from the oounty. Thla @aBe further holds that a Justice of the PIIaoe was not entitled to ro- oover from th$ county Items 0s expenses olalmed ?or jmrtage, waveling expenses, and messenger servloe during oertaln yeare while ln oftfoe, where the Juatlce did not rrndm monthly rtatem4nta of suoh expeneee a8 required by statute, but merely filed annual reports imtimating the expen8eia in lump sun anounts. This 0~84 a180 further holds that the statute requiring oounty offioers to make a monthly etate- mont of axpnsaz inourmd in,the oonduot or their oiYioe8 cannot bs SVad85 by givlilgyearly eetimatea 0r expnsea in 1UB~ 8Ua 8InOUUtS. R4xerrlng t0 Artlole 9899, eupra, ‘~8 quote from the above aentlonod case as follows! Honorable Torrentor Hanoook, Page 9 *The manliest purpoea of this 8tatute was to provide a means of astwrtalnlng the oorreot- ness or expense iteme each month as they ars in- ourred. Thr aotual erpenees paid or lnourred oonatltute the meaeure of the ottlcfal~e right to reooupnent. The monthly itemization 13 for the proteotion of the oowlty by affording a mean3 of ascertaining the faot and emount of ruoh olalmed item of expense and whether it was properly ohargeable l e ouch. It le luanifeet Srom the annual report3 and oonflrmed by the evtdsnoe that thene expensea were msrely as- timated and 3 lump eua given eaah year. The stetute would be of no ~31~s if Its oalutory provisions oould be lvaded in this manner. . .- The authorized expenresl whioh say be doduated Under ArtiOle 2899, supra, are ouoh expanrrer as are enu- -rated therein, and an offloer to be entitled to make euoh deductlone au3t comply with Article 5899, sugra, bl making an itemized and sworn 8tateaient of all. the actual and nsoeseary expenses inourrad by hizn in the oonduot of his office at the olosa of each month of hi@ tenure of of- rioo. Only those expenses whloh are authorized Under the atatute oan be deduoted. From tho faote stated In your la&tar, the oonstable di8 not m&s an itoti%ed and #worn monthly rtateummt ot the axpanaon lnourred by him in tha oonduat of his offioe a3 require6 by Artiole 3899, supra. Thererore, the opinion of the oourt in the oaeo OS Pierson, Justice of the Peaoe, et al. V. (.i3lvOetOA (%Unty, BUpl!a, anmars your that question. ~rtlole S908, eupra, spsoifically provides the nmmsr and mthod of prooeduro that any diotriat, oountp or preoinot otfloer nzust follow when euoh ortloer requtre8 the services of Ueputiee, as8istants, or olerks In the per- formanoe of hi3 dutlee. Under the facts stated In your inquiry, the constable did not oomply with any of the pro- visions of the above mentioned etatute. Therefore, your eeoond queetion is reap%otfully answered ln the negative. IIX answer to your third quaetlon, you are advised that it is our opinion that in auditing the annual report Of Honorsble Torrester Eanoook, page 10 , the constable, th% unoolleoted is%% reported by said oon- stable are not to be considered as oa%h item% in asoertaln- lng t~he total Fjross earning%, but %uoh tee% are to be aon- sidered as tee% earned during the tiaoal year and not collected, which shall be ahown in the aworn staterent of the constable a% -,rovided br Article 3091, Vernon*% AMO- tated Civil I_ %at&es . In view of the foregoing authorities and under the etaterrrent of tacta above quoted, your fourth que%tlon is answered in the negative. With referenoe to your fifth quertlon, it is our opinion that the proper ~.rooedum to entoroe the right Oi the county under the above mentioned taots would be for the county to institute suit on the oon?tahlets bond to,QOlleOt any and all fees that the oonstable la lllegallp withholding fropl the county whioh the oounty is legally entitled to. Trueting that the foregolng fully answer% your in- quiry, owe are Yours very truly ATTOIZNSYCXiUliALOS?TEXAS GENEiRAL Ardell Williams Aesi8tant AXIew