Untitled Texas Attorney General Opinion

OF TEXAS OERALDc. MANN Auwruu II. - Honorable L. P. He&d CourityAuditor Bell county Belton, Texas Dear Sir: OpFnFon No. 0-399~ Re: Are'the Items submittedby the constable and justiae of the peace authorized de- ductions from fees? Is it the duty of the county audltor or the acmmissloners~ cqurt to approve the annual accounts of the above men- tioned precinct officers? Your reoent request P& an opinion of this de- partment on the above stated questions has been received. We quote from your letter as follows: "Will appreciate if you will advise me with peferenae to the following matters: "We have a Constable that shows In his annual report that his offiae earned and collected $3,915.50 during the year 1939; IncidentallyI may say that the Comml.sslonerlsCourt have left all Constables and Justiae of the Peace on the Fee basis; Along with this he also lists as authorized deductions the following items; "Maximum fees allowed under Art. 3883-3883d 1,800.oo Payment of Deputy Constables (whose appoint- ment was approved by Cap. Court) 900.oo Stationery and offiae supplies 15.00 Telephone and telegraph 250 .oo Postage 30 .oo TravelFng expense Total Deductions -k%e+- "No other remarks of any descriptionare made with reference to the Deductions, and I am just wondering If you will advise me whethe* or not'any otiall of the - - Honorable L. P. Heard, page 2 (O-399) items above set out could be classed as authorizedde- ductions. "Also we have Justice of the Peace who shows as Authorized deductionsthe following: "Maximum fees allowed 1,800.oo Stationeryand office supplies 30.00 Telephone and telegraph 50.00 Traveling expense 36.00 Office Rent 180.00 Ice for office Water bill, soap, paper eta. for wash room 406% ffasfor heating 6&i;; Lights for office, fan and radio Janitor Service 72 I00 Total $2,454 .OO "No other notations are made tith reference to these items. "I may aay that neither myself ncrrthe Commls- sioner'sCourt were Informed of the neaesslty of any of these Items, nor has the Court passed any orders or ap- proval of any of the Items except the appointmentof the Deputies of the Constable. "May I ask the same question wl.threferenoe to the Justlae of the peace as was asked about the Constable. "Also, will you please advise me upon whom the duty of the approval of the annual account falls. It seems to me that It is incumbent upon the Commissioner's Court, but just at thFs time I am unable to locate the law with regards to the approval of annual reports." The population of Bell County according to the last federal census is 50,030 Inhabitants. Article 3883, Vernon's Annotated Civil Statutes, reads in part as follows: "Rxcept as otherwiseprovided In this Act, the annual fees that may be retained by pre- cinct, county and district officersmentioned In this Article shall be as follows: 1’ Honorable L. P. Heard, Page 3 (C-399) ". . ; “3 . In counties aontalnlng as many as thirty-seventhousand five hundred and one 37 501 and not more than sixty thousand {~O'OOO] Inhabitants or containinga city of &er twenty-fiveihousand (25,000) lnhab- ltants: County Judge, District or Crlmlnal District Attorney, Sheriff, County Clerk, County Attorney, District Clerk, Tax Colleotor, Tax Assessor, or the Assessor and Collector of Taxes, Thirty-fiveHundred ($3500.00)Dollars each; Justice of the Peace and Constable, Eighteen Hundred ($1800.00)Dollars each." Article 3891, Vernon's Annotated Civil Statutes, reads in part as follows: "Each offlocr named In this Chapter shall first out of the current fees of his office pay or be paid the amount allowed him under the provisions of Artlale 3883, together with the salarles of his asslstantaand deputies, and authorizedexpenses under Article 3899, and the amount necessary to cover costs of premium on whatever surety bond may be requlr- ed 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 hereinafterpro- vided. 11 . . . "In counties containingas many as thlrty- seven thousand, five _ hungred and one (37 501) and not more than sixty tnousand '(~o,ooo~,or containinga olty of over twenty-fivethousand (25,000) Inhabitants,dlstrlct and county of- ficers named herein shall retain one-third of such excess fees until suah one-third,together with the amount spealfled In Artlola 3883, amounts to Forty-two Hundred and Fifty Dollars ($4250). Preclnat officers shall retain one- third untll such one-third,to ether with the amount specified In Artlole 38 83, amounts to Twenty-twoHundred Dollars ($2200)." ‘t . Honorable L. P. Heard, page 4 ( O-399) Article 3896, 3897 and 3898, Vernon's Annotated Civil Statutes reads as followsI "Art. 3896. Each district, county and pre- alnct officer shall keep a correct statement of all fees earned by him and all sums oomlng Into his hands as deposits for aosts, together with all trust funds placed In the registry of the court, fees of offloe and commissionsIn a book or In books to be provlded~hlmfor that purpose, In which the officer, at the time when such de- posits are made or suah fees and commFaslonsare earned and when any or all of such funds shall come Into his hands, shall enter the same; and It shall be the duty of the oounty auditor In counties having a aountjrauditor to annually exam- ine the books and acaounts of such offloers and to report his findings to the next succeeding grand jury or district aourt. In aountles having no county auditor, It shall be the duty of the Commissioners1Court to make the examination of said books and acoounts or havesthe same made and to make report to the grand jury as hereinabove provided. "Art. 38%'. Each district, county and pre- olnct offlaer, at the olose of each fiscal year (December31st) shall make to the district oourt of the county In which he resides a sworn state- ment In triplicate (on forms designed and ap- proved by the State Auditor) a copy of whlah statement shall be forwardedto the State Audi- tor by the clerk of the district court of said county within thirty (30) days after'the same has been filed In his office, and one copy to be filed with the county auditor, If any; otherwise sald copy shall be filed with the CommIssIonera court. Said report shall show the amount of all fees, commissionsand aompensationswhatever earned by said offiaer during the fiscal year; and secondly, shall show the amount of fees, com- mlsslons and compensationscollected by him dm~- lng the fisaal year; thirdly, said report shall contain an Itemized statement of all fee8, commls- slons and compensationsearned during the flsoal Honorable L. P. Heard, page 5 (O-399) year which were not collected,together with the name of the party owing said fees, com- missions and compensations. Said report shall be filed not later than February 1st following the alose of the fiscal year and for each day after said date that said report remains not filed, said offlaer shall be liable to a penalty ef Twenty Five ($25.00) Dollars, which may be reowered by the oounty in a suit brought for such purposes, and In addition said officer shall be subject to removal from office. "Art. 3898. The fiscal year, tithln the meaning of this Aot, shall begin on January 1st of eaah year; and eaoh district, county and pre- cinct offlaer shall file his report and make the final settlementrequired In this Aat not later than February 1st of eaoh year; provided, however, that officers reaelvlng an annual salary as oom- pensatlon for their services shall, by the olose of eaoh~month, pay Into the Offlaersl Salary Fund or funds, all fees, aommlaslonsand oompensatlon aolleatedby him during said month. Whenever such offlcer'servesfor a fractionalpart of the fls- oal year, he shall neverthelessfile his report and make flnal settlementfor suah part of the year as he serves and shall be entitled to such proportionatepart of his oompensatlonas the time for his servloe bears to the entlre year.' Paragraph (a) of Article 3899, Vernon's Annotated Civil Statutes, reads as follows: "(a) At the close of eaoh month Oh hiti tenure of office each offloer named herein who Is compensated on a fee basis shall make as part of the report now required by law, an Itemized and sworn statement of all the actual and necessary expenses incurred by him In the oonduct of ~hlsoffloe, suah as stationery,stamps, telephone, premiums on offloialslbonds, lnclud- lng the cost of surety bonds for his Deputies, premium on fire, burglary, theft, robbery Insur- ance proteatlng publla funds, traveling expenses and other necessaryexpensesr The Commlssionersl Court of the oounty of the Sheriff's residence Honorable L. P. Heard, page 6 (O-399) may, upon the written and sworn application of the Sheriff stating the necessity there- for, purchase equipment for a bureau of arlminal ldentlflcatlcnsuch as cameras, finger print cards, Inks, chemlaals,mlcro- scopes, radio and laboratoryequipment,fll- lng cards, filing cabinets, tear gas and other equipment In keeping with the system Iiiuse by the Department of Publlo Safety of this State or the United States Department of Justice and/or ~Bureauof Crlmlnal Identlfloatlon. If suoh ex- penses be lnourred In aonneotlonwith any parti- aular case, such statement shall name suah case. Suah expense aocount shall be subject to the audit of the County Auditor, if any, other-vise by the CcunmlsslonerslCourt; and If It appears that any Item cf suoh expense was not Incurred by suah offloer or such item was not a neces- sary expense of office, such Item shall be by suah auditor or oourt rejeoted, la which ‘case the aolleatlons of such Item may be adjudicated In any oourt of oompetent jurlsdibtion. The amount of salaries paid to Assistants.andDepu- ties shall also be olearly shown by suoh office, giving the name, position and amount paid each; and In no event shall any officer show any great- er amount than actually paid any such Assistant er Deputy. The amount of suoh expenses, togeth- er with the amount of salaries paid to Assistants, Deputies and Clerks shall be paid out of the fees earned by such officer. The Commissioners'Court of the county of the Sheriff's resldenae may, upon the written and sworn applicationof the Sheriff stating the necessity therefor, allow one or more automobilesto be used by the Sheriff In the dlsaharge of his offlalal duties, which, if purchased by the County, shall be bought in the manner prescribed by law for the purchase of supplies and paid for out of the Qeneral Fund of the county and they shall be and remain the property of the county. The expense of maintenance,depre- ciation and operation of suah automobilesas may be allowed, whether purchased by the county or owned.by the Sheriff or his Deputies personally, shall-be pald for by the Sheriff and the amount thereof shall be reported by the Sheriff, on the report above mentioned, In the same manner as herein provided for other expenses." Honorable L. P. Heard, page 7 (O-399) The salaries of Justices of the Peace and Con- stables of Bell County are respeotively,Eighteen Hundred Dollars ($1800.)plus one-third of the fees colleoted In excess of such amount of salary, as provided In Article 3891. sum-a, so that suoh total salary shall not exceed the sum of Twenty-two Hundred Dollars; In this oonneotlon we quote from our Opinion No. O-131, as follows: "we construe Article 3891 to'mean that in com- puting the excess fees to be allowed these offioers It Is not permlsslble to compute one-third of all fees colleoted but only one-third of suoh fees In exaess of and above $1,800.00. That Is to say, if the total fees aollected should be $3,000.00, the Justioe of Peaoe and Constable would be en- titled to retain one-third of $1200.00 whlah would be the sum of $400.00, thereby making the total salary and exaess fees allowed to such officers to be the sum of $2200.00." In the case of Pierson, Justfoe of the Peace, et v. Galveston County, 131 5. W. (26) 27;referrlng to %le 3899, It was held, among other things that the purpose of the statute requiring aounty off&s to make a monthly statement of expenses lnaurred In the oonduot of their offices was to provide a means of ascertainingthe correctnessof suah expense items eaah month as they are Incurred and that the actual expenses paid or Incurred by suoh officers constitutethe measure of the offlclaliB right to recoupment from the county. This case further holds that a Justice of the Peace was not entitled to re- cover from the county Items of expense olalmed for postage, traveling expenses, and messenger service during certain years while In offlae, where the Justice did not render monthly statements of'such expenses as required by statute, but merely filed annual reports estimating the expenses In lump sum amounts. This a886 also further holds that the statute requiring oounty officers to make a monthly state- ment of expenses lnaurred In the conduat of their offlaes aannot be evaded by giving yearly estimates of expenses In lump sum amounts. Referring to Artiole 3899, supra, we quote from the above mentioned case as follows: . . Honorable L. P. Heard, page 8 (o-399) "The manifest purpose of this statute was to provide a means of ascertainingthe oorrect- ness of expense Items eaoh month as they are inaurred. The actual expenses paid or Incurred oonstltutethe measure of the official'sright to reooupment. The monthly ltemlzatlonIs for the protection of the county by affording a means of ascertalnlngthe faat and amount of such claimed Item of expense and whether It was pro- perly chargeableas suah. It Is manifest from the annual reports and confirmed by the evidence that these expenses were merely estimated and a lump sum given each year. The statute would be of no value If its salutory provisions could be evaded In this manner. F ." The authorized expenses which may be deducted under Artlale 3899, supra, are suoh expenses as are enum- erated therein, and an officer to be entitled to make such deductionsmust aomply with Artiole 3899, supra, by making an Itemized and sworn statement of all the aatual and ne- cesssry expenses inourred by him In the aonduat of his offlae at the olose of each month of his tenure of offloe. Aa above stated, only those expenses whlah are authorized under the statute oan be deduoted. P'rcmthe facts stated In your letter, we preaume that neither of the above men- tioned precinct offlaers made an Itemized and sworn month- ly statement of the expenses Incurred by them In the con- duct of their offices as required by Article.389g;supra. Therefore, the opinion of the court In the aase of Pierson, Justice of the Peace, et al. v. Galveston County, supra, answers your first question., Referring to your seaond question, you are ad- vised that It is not the duty of the oounty auditor or the ccmmlsslonerslcourt to approve the annual accounts of the above named precinct offlaers exaept as'provided by Article 3896, making It the duty of the county auditor In counties having a county auditor to annually examine the books and accounts of such offlaers and to report his findings to the next suaoeedlnggrand jury or district oourt. In counties having no county auditor, it shall be the duty of the Com- mlsslonersl court to make the examination of said books and accounts or have the same made and to make the report to the grand jury as required by law. The sworn statement required to be filed annually by Article 3897, supra, Is not required by law to be ap- Honorable L. P. Heard, page 9 proved by the county auditor or the commlssionerslcourt. Trusting that the foregoing fully answers your lnqulrles,we remain Yours very truly ATTORIIEYC;IEI4JZRALOFTEXAS By /a/ Ardell Willlama Ardell Wllllams Assistant AX:jm SC APPRCVEDFEB 29, 190 /a/ Gerald C. Mann ATPORREYGEI'JERALOFTEXAS APPROVED Opinion Committee BY BWB Chairman