,.
R-465
OFFICE OF
TRE ATTORNEY USENEW
I
May 20, 1947
Hon. Royce Whitten
County Attorney
Lamar County
Paris, Texas
Dear Sir: Opinion No. V-224
Re: Maximum fees of the
constables of Lamar
County.
Your request for an opinion from this Department
is as follows:
"This is to request your opinion oon-
cerning the amount of fees of office that
a constable may retain where he is not on
a salary basis. The facts of the case are
as follows:
"Troy Bussell is constable of Precinct
One, Lamar County, Texas, with office in the
Court House at Paris, Texas. Lamar County
has a oooulation of slightly over 50,000
people-according to the-last Federal census .
All the other officers of the County are on
the salary basis, but the Justices of the
Peace and the constables are on the fee basis.
"(1) Under the law how much net profit
from fees in office is the constable allowed
to retain per annum?
“(2) Can the County Auditor at his dis-
cretion permit the constable,to purchase a
new automobile to be used in carrying on his
official duties and allow such constable to
pay for such automobile out of fees of office
other than such fees of'office which he may
retain as his net profit under the law?"
Honorable Royce Whitten - Page 2
Lamar County has a population of 50,425 according
to the 1940 Federal Census, and its precinct officers are
compensated on a fee basis. Therefore, the compensation of
the constables is governed by Articles 3883 and 3891.
The provision of Article 3883 applicable to Lamar
County is as follows:
"In counties containing as many as thirty-
seven thousand, five hundred and one (37 501)
and not more than sixty thousand (60,OOOj inhabi-
tants, or containing a city of over twenty-five
thousand (25,000) inhabitants: County Judge,
District or Criminal District Attorney, Sheriff,
County Clerk, County Attorney, District Clerk,
Tax Collector, Tax Assessor, or the Assessor and
Collector of Taxes, Thirty-five Hundred Dollars
($3500) each; Justice of the Peace end Constable
Twenty-four Hundred Dollars ($2400) each. . .*
The provisions of Article 3891 applicable to Lamar
County read as follows:
"Each officer named in this Chapter shell
first out of the current fees of his office pay
or be paid the amount allowed him under the pro-
visions of Article 3883, . . .
"In counties containing as many as thirty-
five hundred and one (37 501)
%e~o:h~%%an sixty thousand (60 OQOI or
contain:+. a city of over twenty-fiv; tho&and
(25,000) inhabitants, district and county of-
ficers named herein shall 'retainone-third of
such excess fees until such one-third, together
with the amount spec,ifiedin Article 3883, a-
mounts to Forty-two Hundred and Fifty Dollars
($4250). Precinct officers shall retain one-
third until such one-third, together with the
amount specified in Article 3883, amounts to - '-
Twenty-two Hundred Dollars ($2200).n
n* . .
"(a) The Commissioners Court is hereby
authorized, when in their judgment the financial
condition of the county and the needs of the of-
ficers justify the increase, to enter an order
increasing the compensation of the precinct,
county and district officers in an additional
Honorable Royce Whitten - Page 3
b emount not to exceed twenty-five (2%) per cent
of the sum allowed under the law for the fiscal
year of 1944, provided the total compensation
authorized under the law for the fiscal year of
1944 did not exceed the sum of Thirty-six Hundred
($3600.00) Dollars."
.'Subdivision (a) of Article 3891, above quoted, autho:
ises the Commissioners' Court when in their judgment the finan
cial condition of the county and the needs of the officers
justify the increase to enter en order authorizing the precinc
officers to retain out of excess fees an additional amount not
to exceed 25% of the maximum sum allowed under the law for the
fiscal year 1944. The maximum compensation the precinct of-
fiaers of Lamar County could receive in 1944 was the maximum
such officers could receive under laws existing August 24, 193!
The maximum compensation precinct officers of Lamar County cou:
receive under laws existing August 24, 1935, as fixed by Artic:
3883 and Article 3891 as amended by Ch. 327, Acts of the 44th
Legislature, p. 752, was $2400.
Therefore, it is the opinion of this Department that
the maximum fees constables of Lamar County can retain is $3001
($2400 plus $600) provided the Commissioners' Court has enterei
en order increesing their compensation in an additional emount
of 2% of the sum allowed under the law for the fiscal year
1944. The $600 increase, however, must be paid out of the one.
third excess fees provided for in Article 3891.
In answer to your second question, it was held in
Opinion No. O-4342 that a constable compensated on a fee basis
is entitled to deduct from excess fees necessary traveling ex-
penses incl~udingthe expenses of gas, oil and a reasonable e-
mount of upkeep incurred by a constable in the discharge of hip
official duties. We are herewith enclosing copies of our Opin
ions Nos. O-1284, o-1304, O-1866, O-3194 end O-4342, which con.
tain holdings of similar effect. In view of the foregoing, it
is our opinion that the purchase of an automobile for a con-
stable to be used by a constable in the discharge of his offic-
ial duties is not "necessary traveling expense* and, therefore
your second question is answered in the negative.
SUNMARY
1. The maximum compensation which constables
of Lamar County may receive is $3000. Any compen-
sation over and above $2400, however, must be paid
out of excess fees. Arts. 3883, 3891, V.C.S.
Honorable Royce Whitten - Page 4
2. The constable is not authorized to pur-
chase a new automobile out of fees of office.
Yours very truly
ATTORNEY GENJIRkLOF TEXAS
Assistant
ATPROVED
ATTORTGX GENERAL
JR:jrb
Enclosures