:
OFFICE dF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
6.P”
February 25, 2939
.-
12. CmAos c. Ashley
Dm~ic~tAtorney
,
De3r sir: 'c\
but da to beotlCb3s
Your lstter 3adrt333ea to
Attorney C3nsral GS
to ttiewriter. on as to wh6th-
er or not Eemr fmxa its sbrfff-
aasassor-co&? or deputy hire,
68 app,pliea for.
he sheriff-asses-
ptie,s unaer autLo;oritp
aer cna later hired ad-
ahdtticmal deputies
r tha ori&.nalthree
is worthy oi cnroful consid- .
not got been
cle,3$02 R.C.S.,
us. Our108 C. Ashley, February 25, 1939, page-2
application shall be accoxpanlea by a
stateiiientshovlluc the probable receipts
frm fees, comlsslons ana corrpen6atloh to
be COUeotod by aaid Offi dUri6g the
flsoel year cod the probable disbursements
which 8hd.l inOiua8 all salarias ma ex-
pm366 Of YiIia OffiCO; aa SE&i OOUrt
shallmke its order authorizing the ap-
pointment 0r such ~depUtb36, QSSiStIXlt6 ana
~elerk6 aud fix the compensation to be paid
thtxawltbin the linitationa herein pre-
soribea and determine the nunbar to be ap-
pointed as in the dl6crotlon of said court
may be proper; provlGoa t&t In no aose
6hI.X~ the CO~zaSiOn~s' COuXt Or my mOi3-
her thereof attozzpt to influence the ap-
POiIltMllt Of aBy pel?SO?la6 deguty, &SSiStaIlt
or 01&c in any offioa. Upon the entry of
such order-the offioars applying for such
assistants, da&ties or,olerks shall be eu-
tlmrizedto apgolnt theta; provided that Said
ooqxmsation siiall not exceed the maxlmm
amount hereinafter set out a‘* * ,?
In this instance, the Cacunisslonors~ Court
dld authorize the expenditure of the amount pala, but
did not authorize the payment as mae. You have not
stated in your letter whethor or not the C&osionerd
Court has taken.any action on the annual rqort of
tb officer, whioh my be of oontrolllng inportauce
in effw.%inZ the rl3hts of the comty. 'The sheriff-
8saoesor-collcotor had no authority to anpoint depu-
tics, except by the prooeduro as outlined in the
e!:oveArticle 3302. Further, he had no authority to
8zroe u-&n or to pay a less zuiount to *e origlual
three deputio6 than as autl;orlced by the Cozmlssion-
crs* Cart order. :.~2rylcmcl Casmlty Coqany vs. The
+itc, 107 S,..:.(2d) 035.
The C~~ssloner3~ Court may subsequently
h3Ve authorlmd ori;-,%ally.
.:tlfytkt IlziPCh it ;'*ly
3, lihore tl~ ComLosiomrs* Court a:,provos the
&!r. ca.rlOS C. Ashley, February 25, 1939, Z&e 3
i
the expenditures ln the annual report or tie oSSlcer
as to paying d8putie6 not authorized to hnve hem ag-
ptit8a., the county Is bound as having authorized the
deduction. Tho'Stato OS Texas vs. Carries, 106 2.3.
(2a) 397; Camron countyvs. Pox, 61 ~321, (2a) 403.
fIo?mvcr, whom more than three years had elapncd aSter
the a~pointmnt und paymnt of an unauthorized deputy,
nhere tbsre was no action of ogproval token by the
CocmissloUers~ Court, and though tho County Auditor
had allowed the paymzit, the county was not estopped, i
but 00ua rocover. Tarraut County ~5. Smith, 81 S.P.
(2al 539. i
We believe that ,th8 procedure in Article
3902 above Is properly construed us a cadition pre-
ceaont to a county officer*8 right of appointment of
deps~W~& and hi6 rip;ht to deduct the armunt of dquty
il‘8 reoo@ize that any e~cndituro for depu-
ty hire iot au authorized 0xpenditu-Pe &ves the couu-
ty a right to recover. Ikm3vsr, In this instants,
it appears that the expenditure was authorized, thou&
the ag?ointklents w8ra cot authorizedi Z:o do not be- i
ve suffered an 1niiWyfor i i
-~~~-li~~ey-i~~~o~~~~~iaaa to / . i
'%iiid have been different
BW-tbe 0fSloer appropriated the zoney to his own use
or otlmr use than deputy hire. Thor8 ~olild not be ~ 1
any question as to the county having lost its right
to'assort the olalm, in this instance, v:hcre the Com- /
rninsionme~ Court has agprovcd the auditiny, and set-.
tllng of the offlo8rts account; and IS the Comiission-
or@ Court hw mae no approval of 8xgcnditures to /
the additional deputies,' :ia believe that the violation
OS Article 3902 ?lould give rise to the basis for a
s.4.tin the violation OS a lec;al~right, but the theory
of dammahsque InjUria Vould preclude a recovery. In
othc-rwords, ;.cmrc?.Co:,~ltyhas not bocn out fore t:ian
the $X00.00 a::pqved 0~;:,enditxire, nU cf ::!iiohwe3 ex-
.pended Sor deputy biro.
'iiezro not c:;:lod~upon to datomine the lia-
bility as bctwcn the offiow and original d8pUtie6.
Fuxtlier, the Stnto of Te.x~s not bein< 3 party to this
.i'
u. Carlos C. Ashley, Pebrumy 25, 1939, Page 4
propos0d suit and In llau OS tbis pnrtloular nitm-
tion not havine been previously detmhoa in the
courts, OUT opinion can only bo an'abotrnct otatomnt
of the applicable km iind should constitute no author-
ity for any action.
Be1iovlu5 this to answer your inquiry, Wt3
are
Yours very truly
::ob
.