Untitled Texas Attorney General Opinion

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