HE ,L~ITORNEY GENERAL
OFTEXAS
Honorable J. C. Gowdy
County Auditor
Wichita County
Wichita Falls, Texas
Dear Sir: Opinion No. O-5014
Re: Under the facts set forth does
the commlssloners' court have the
authority to make settlement with
the constable and allow the addi-
tional amount for traveling ex-
penses,,and other related questions?
Your letter of December 9, 1942, requesting the
opinion of this department on the questions stated therein
reads in part as follows:
"I will appreciate your opinion on the fol-
lowing:
"Article 3899 R.C.S. provides for the monthly
reports of officers compensated on a fee basis.
Same requires them to submit an itemized and sworn
statement of all the actual and necessary expenses
incurred by him in the conduct of his offIce, which
includes traveling expenses.
"A Constable in this County made monthly re-
ports of his receipts and office expense, same
being audited and approved by this department If
found correct. However, the Constable, in sub-
mltting his annual report for 1941 sets out the
amount of $483.73 for traveling expenses. On his
monthly reports for the year 1941 the traveling
expenses for the year amounted to only $129.59,
which was supported by proper evidence of expendi-
ture and allowed.
"We made our auditor's report to the alstrict
judges, also copies to commissioners' court, cover-
ing this department, allowing on1 expenditures
made In accordance with Article 3g99. We did, how-
ever, before closing our audit on this department,
request the Constable to submit to us for auditing
Bonyable J. C. Gowdy, page 2 O-5014
and approval properly receipted Invoices or other
evidence of expenditures covering the difference
in the traveling expenses. This the Constable was
unable to do, therefore, the auditor's report was
filed allowing only the $129.59 traveling expenses.
After compilingour audit of this department for
the year 1941, we found the Constable owed the
County $395.52 In excess fees. Copy of same at-
tached hereto.
"Does the Commissioners Court have authorltg
to make settlement with the Constable and allow
the additional amount for traveling expenses?.
"Does the County Attorney have authority to
recormnendto the County Auditor or Commissioners
Court or any court that this addttional amount for
traveling expenses be allowed and settlement be
made accordingly?
"In the event it becomes necessary to employ
outside legal assistance in collecting this account,
or any other account for the County, who has author-
ity to employ same?
I! ,t
. . . .
The precinct officers of Wichita County are compen-
sated on a fee basils. Wichita County has a population of
73,437 inhabitants according to the 1940 Federal Census.
Article 3883, Vernon's Annotated Civil Statutes
provides In part:
"Except as otherwise provided in this Act,
the annual fees that may be retalned by precinct,
county and district officers mentioned in this
Article shall be as follows:
,I
. . . .
"4 . In counties containing sixty thousand and
one (60,001) and not more than one hundred thousand
(100,000) lnhabltants: . . . Justice of the Peace
and Constable, Twenty-one Hundred ($2,100) Dollars
each.
. . . .II
It
Article 3891, Vernon's Annotated Civil Statutes
provides,in part:
Honorable J. C. Gowdy, page 3 O-5014
"Each officer named in this Chapter shall
first out of the current fees of his office pay
or be paid the amount allowed him under the pro-
visions of Article 3883, together with the sal-
arles of his assistants and deputies, and au-
thorized expenses under Article 3899, and the amount
necessary to cover costs of premium on whatever
surety bond may be required by law. If the current
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.
II
. . . .
"In counties containing sixty thousand and
one (60,001) and not more than one hundred thou-
sand (100,000) inhabitants, . . . Precinct of-
ficers shall retain one-third until such one-
third, together with the amount specified in Art-
icle 3883, amounts to Twenty-six Hundred Dollars
($2600).
11
. . . .I!
The auditor's report with reference to the receipt,
disbursements, etc., of the precinct officer mentioned is as
follows:
"AUDITOR'S REPORT
C. H. CLARK
CONSTABLE PRECINCT NO. I
1
RECEWTS
Criminal Fees y,i;;; .$
Civil Fees
Examining Trial Fees ' 19:oo $5,872.52
DISBURSEMENTS
DEPUTIES' SALARIES:
J. B. Scarbrough $ ;yg
J. J. McCarter
D. R. Witherspoon 1,035:oo
H. F. Leverett 632.50
V. L. Smith 350.00
Patsy Humphris 55.00
Peggy MathIs 20.00 $2,972.50
.. .
Honorable J. C. Gowdy, page 4 O-5014
Premium on Bond 15.00
Maximum Fees Allowed (Art.
3883) 2,100.00
OTHER DEDUCTIBLE EXPENSES:
Postage $ 15.90:
Office Help 45.00
Traveling Expense 129.59
Telephone and
Telegraph 2.15 191.74
EXCESS FEES 8 593.28
One Third Excess Fees Retain&
by Officer 197.76
Balance excess Fees Due County 395.52&~.872.52
NOT?3: Maximum Fees
Allowed $2,100.00
Excess Fees
Retained 197.76
Total Compen-
sation $2,297 :76”
The case of Pierson v. Galveston County, 131 S.W.
(2) 27, among other things, holds that a ;fustFce of the Peace
was not entitled to recover from the county items of expense
claimed for postage, traveling expenses, and messenger ser-
vice during certain years in office, where the JustiCe of the
Peace did not render monthly statements of such expenses as
required by Article 389, Vernon's Annotated Civil Statutes.
In thfs case the Justice of the Peace merely filed annual
reports estimating the expenses In lump sum amounts. Under
the facts stated in your letter and the holdings of the court
In the case just mentioned, it is our opinion that your first
question should be answered in the negative and 9s:so answered.
As we have answered your first question in the ne&-
ative it necessarily follows,that your second question must
be answered in the negative and is so answered.
With reference to your third question you are ad-
vised that the commissioners','courtof Wichita County is legal-
ly authorized to employ outsMe legal assistance In collect-
ing the account mentioned, or any other account, 1n the event
it becomes necessary.
Honorable J. 6. Gowdg, page 5 o-5014
.,Wequote from Texas Jurisprudence, Volume 11, page
575, as follows:
i "The commissioners' court has power to employ
attorneys to assist the regular constituted officers
of the county in the prosecution of Its claims and
suits, and to pay for such services out of the coun-
ty funas. It seems, however, that the commLssloners’
court does not have the power to deprive the county
attorney of his rightful authority in this regard.
The employment of counsel is restricted to special
cases where the services of an attorney are required;
nor has the court power to make an order which will
warrant the payment of county money to an attorney
for services neither required nor performed.", (Adams
V. Seagler, 250 S.W. 413; Gibson v. Davis, 236 S.W.
202; Terre11 v. Greene, 31 S. W. 631; Glooms v. Atas-
cosa County, 32 S . W. 188) .
Under the holdings of the above mentioned cases, It
IS apparent that the commissioners' court has the power and
authority to employ attorneys in the prosecution of Its claims
and suits and pay for such services out of the general fund
of the county where the county, as a whole, Is Interested and
affected In such proceedings.
Trusting that the foregolng fully answers your in-
quiry, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By S/Ardell Williams
Ardell Williams
Assistant
AW:mp:wc
APPROVED DEC 18, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Qpinlon Committee By s/BWR Chairman