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                                                         MO4




                           March 6, 1947

      Honorable David J, MOPP~S    Opinion No. V-71
      County Attorney
      Brown County                 Res Authority of the
      Brownwood, Texas                 Comaissioners’Court
                                       to pay a constable
                                       (on a salary basis)
                                       mileage expense for
                                       the use of his auto-
                                       mobilr.
      Dear Sir:
               Your letter requesting an opinion from this
      Department is in part a@ followa:
                “I have this question at present asked
           m8 by the Commissioners’Court: Uh8re a~
           constablehas been put on a balarf basis,
           has the Collmissloners’Court ~autherity to
           pay such constablemileage fctrthe use of
           his automobile?
                “Apparentlythere 18 nothIng directly
           on this in the,dtatutea. Prior to’being
           placed on a salary, the oonstable could aol-
           lect fees for mileage in serving paparp~,bulb
           after being put on salary he must turnssuah
           fees of service over to the salary fund.
           Art. 39120, sec. 2, provides~foroaying
           salary to precinct officera; Sec. 17 pra-
           vides for the fixing of their salary; and
           Art. 3899, Sec. B, provides for the payment
           to the Sheriff’of 4# per mile for the use
           of his automobilewhen he owns the automo-
           bile. Can we infer fzpomthis that the Corn--
           missioners’ Court would have autho&itg to
           make the same payment to the constablewhen
           he uses his car?
                “You will readily understand that a
           constable on a salary basis would have muoh
           more incentive to be active in the eervloe
           of papers and serving warrants if’he could
           be reimbursed f’orhis expenses.”
Hon. David J. Mom111 - Pagb 2, Van


          Subdivision (b), Article 3899, V.A.C.S.;
provfUss in part the following:
           "The OoraissioaorsCourt of the
      oounty of the eheriff'sresidencery,
      upon the writton and sworn application
      of raoh officrr, stating the nrcerrity
      themfor, allow oae or more aut@mebil~r
      to be used by the sherUT in thr Qie-
      cwrgs of orrioial bu8i~e8e, wuch, is
     purchassd by the county 8h&ll br be   t
     in the ~8.m~ prescribedby law far"thu.
     pwchaae ol eupplfer and paid fop out ef
     the Qsneral Pun6 of the county ad they
     ah8ll be rrportel aad paid in the 8ane
     naaor ,a?horoia pr4vUod fop other a-
     penser.
     ,




             En ooartruiagthr absvo qwtr& pro*18loa,WI
Departmwtf    held the fO~%OW%ngti ,OuS-On    k. e4-t
          “By virtue of Suction B, Artlols 3899,
     Vernoa'8 hnaetated Civil Statutor, the
     DhOFiif b WI 4eputLos Ime UFO
     On 4 8a1-r     h818                    YES-
                            Who @WSi 88d '1180
     adxue@blle    or WAterobilOl    35 tho biloLllr(e
     of offioLb1    ba8inerr   are allow04   feud aoats
     for 8aOh rile traveled tn the &i8Qhar@3 Of
Hop. David S. Morris - Page 3, V-71


     officialbusiness. Suoh &umahall cove@
     all ex9ensee of the maintenance,degreai-
     ation, and operation of such automobile ep
     automobiles. Suoh mileage shall be reported
     and paid In the aam% mater prescribedfor
     other allowable expenses under the provisions
     of the act. This act does not provide four
     cents for each mile traveled by a constable
     in tli%d;scbarge of his sfriclal businsss.




         We quote the following from HansaomBvs. Harris
County (Clv. A99.) 243 S.W. 1002, errm refused:
         'It v&a also shown by the undisputed
    evidence that the expenses so incurred by
    appellant in the hire of automobileswere
    reasonable mnd nsc~sauy. . .
         "Ye think tMt appellant was not entitled,
    under aW.cle 3897 above mentioned, to deduct
    fro8 ths excess fees of his office 8ue to the
    count;Jexpvneea Incurred by him in the pur-
    chase ef gasoline and lubricatingoils, and
    in making repairs upon his automobiles,though
    used by hi8 6xclualvel~in the discharge of
    his duties as aherifr of Harris county. The
    point was ex~rsssly~so ruled by the Galverton
    Court of Civil Appeals in Harris County v.
            et al., 203 8.W. 445, in a very clear
    Iialmaond
    and full opinion by Chief Justice Pleasants.
         " l   .   .




         'Nor do ve think t4t article 3897 authw-
    IE@V a &;eriff to hizw aFtCsr@bilesovned by
    other peneons for the use of the sheriff in
    the conve~ancoof 9risoner8, etg., and to charge
    the county vitb suoh gxfpenw. FOP, if the coun-
    ty is not oh&geab, 8 vith the price of gasoline,
    upkeep, etu,, of tke sheriff'sovn automobile
    used In the Ulaaharge of his offioial duties, We
    manot me any ~tmma 102 holdLng that the sheriff
    might hire an automobilebelonging to another and
    chwgr the oeunty with the cost of such hire. If
Hon. David J . Morris - Page 4,   V-71




     a proper constructionof article 3897
     requires a holding that a nrheriffmay
     hire automobilesbelonging to other per-
     sons for the purpos~eof discharginghis
     official duties in conveying prisoners
     and election supplies, etc., to and from
     different par~tsof his county, and make
     the cost of such hire chargeabl~eagainst
     the county, then, ,ofcourse, no sheriff
     would be so foolish as to use his own
     automobile in the discharge of such offi-
     cial duties, and keep the same up, etc.,
     at his own ex.ppense.It seems to us that
     it would be nonsensical to say that a
     sheriff Is not authorized by article 3897
     to charge the county with oil and gasollne
     used in his own automobile, or the upkeep
     thereof,,whenused in the diqcharge of his
     official duties in his county, and at the
     same time so construe the article as to
     permit a sheriff to hire another's auto-
     mobile in the discharge of such duties and
     charge the county therewith."
          We quote the following from Harris County vs.
Hammond, et al, (Civ. App.) 203 3. W. 445:
          "It goes without saying that defendant
     was not entitled to credit for the expense
     of operating the automobile,sfor his private
     benefit or plee,sure.We are further of opln-
     ion that, even when he used the automobiles
     in performinp the duties of his office, the
     expense of their operation sho,uldnot be PO-
     garded as 'expe,nse
                       necessarily incurred in the
     conduct,of the office."
          It will be noted from the foregoing cases that
under the statute &s it then existed, the sheriff w&8 not
entitled to expen~sesfor the operation of an automobile
nor for the hire of an automobile. Although Subdiv:ision
(b) of Article 3899, V.A.C.S., how authorizes the payment
to the sheriff of four (44) cents per mile for each mile
traveled:in the discharge of official business, we are of
the opinion that the principle of statutory construction
set out in the above mentioned ca.sesis applicable to the
instant case, and a constableis not entitleU to expenses
for the operation of an automobileunless there is some
provision in the statutes 80 providing.
Bon. David J. Morris - Page 5, V-71


          We fail to tlnd any statute authorizinga
oonstable cotupeasat~on a salary bseis to receive
mileage for the use of his autoaobile. In the absence
of such authority,he camwt oollect such tileage from
the county. Therefore, it is our opinion that the Cor-
m18aionerai Court of Brown County does not have author-
ity to allow a constablevho is compensatedon a salary
baais mileage for the u20 of his automobile in the dice-
charge OS oSflcis2,(hltier.


          The Cornmis8ioners~Court,of a county,
     the constablesof rthlehare coapensatedon
     a malrry basis, has no authority to pay
     such conatablsalailsagefor the use of
     their autvaobllr~In the discharge of their
     official d\5ties,
                                  Yours very truly
                              ATTORREY OHYERAL OF TRXU



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JRfdjW                            Assistant
