Hon. Truett Smith    Opinion‘Ro. 0-241~’
District Attorney    Re: Creation of the iob of soeclal
Tahoka, Texas        officer to work Sn four counties to
                     ;g;;L.gate and apprehend cattle
Dear Sir:                   .
          Your request for .an,
                              op,lnioninvolving‘theabove ‘ques-
tlon,~together with other questionsincidental thereto, has
been received by ~thisdepartment.   ‘~
         Your letter reads as follows: ..:
                                        ;.
         Vour count&s ‘on&e &&s:havb       under consider-
    ation a plan to employ a.spe.clal~:offlcer
                                             ,towork in
    the four+ounties to Investigate. and apprehend,cattle
    thieves and other theft cases. They do not wish to
    try to levy a tax as Is provided In Article 7155a B.C.
    S. to pay for.the services of.such officer but they
    prefer to spay,each county its.:pro
                                      .ratapart, out of
    the available funds of,,thecounty.. I will thank you
    to give me your opinion on the matters hereinabove set
    out.
         “1. Can a Commissionerscourt legally pay out
    from any available county funds .wit,houtthe levying
    of a tax as provided In Art. 71$5a,.for.employing a
    special officer for the purposes mentioned In the
    first paragraph above.?     :.
                              ,.: ~?.
         “2.  Could such offic.eruser& at the time as a
    deputy sheriff in ‘morethan .one:county?
         “3.  In the event the counties could.not legally
    pay out money to employ such,offlcerunder ‘1’ above,
    then could rancher.spay $nto ‘thetreasury of the coun-
    ties, into some special fund, the amount of money
    that would be required to.employ such officer and t,he
    county then pay out such money so deposited by ranch-
    ers to such special officer.
        ~‘14. In.the event :suchcould,be done as stated
    under ‘3’ .above.,
                     would It ba,.necess,ary
                                           for such spe-
    cial officer to make a bond, if so, the amount and to
Hon. Truett Smith, page 2


    whom payable, keeping In mind that four counties
    are involved."
          Under constitutionalsanction, the Legislaturehas
delegated to the counties of this state, acting through the
commissioners’courts, certain authority In various matters.
Their powers 'areonly those expressly or impliedly conferred
upon them by the constitutionand the statutes of Texas, and
the authority thereunderis strictly limited to that conferred
either expressly or by fair or necessary impllcation.~
     11 TEX. JOR. at p.p. ,562 through 566, inc.; CHILDBESS
     COUNTY vs. STATE, 92 S.W. (2d).lOll;GULF BITULITHIC
     CO. vs. NUECES COUNTY 297 S.W. 747 (reversed on other
     grounds 11 S.W. (2d) $05); LASATEB vs. LOPEZ, 217 S.W.
     373.                      .           .                             ‘:,
                              qs   : ,“.:; :, ,,. “~~;~~~~.,:‘
                                                            .;~..;,.’,,’ r.    .j.   .,
          There is no authority:inthestatutes~for'~the~commls~
sioners' court to legally pay out the,funds of the county for
the purposes described in your,.letter;In-the'mannertherein
set out. The specific purpose describedmust, if at all, be
controlled by particle7155a;Xi.C.8.;'!fn:that.:statut~e,
                                                      alone,
rests the authority of ~the'commisslone'r~oourt:.to,pay
                                                      any spe-
cial officer for the purposes'%ndlcatedIn yourletter snd set
out in such statute.
          Of course, there are'the general,statutespertaining
to deputies and their,appolntments Article 6869,dnd:Article
W;    R.C.S., and amendmentsthere4:o,.~which
                                           will-be noticed
     .
          With reference to your second question, It must be
noted In the first place that the ,offlcewhich it ,isdesired
create, according'toyour ~lette~rdoes not exist by creation
law. '&equote from TEX:JUB, Voi. 3&i at p.p. ,326end 327:
          flOfficesare created by the~law and none can ex-
     1st except by Its sanction. It is a settled principle
     also that an office comes into existence only when cre-
     ated in the prescribedmanner. ***It Citing -
     DANIEL VS. EUTCHESON, 4 CIV. APP. 239, 22~S.W. 278,
          (reversed on other points :22 S*W. 933)’
     BENNETT vs. CITY OF LONGVIEW, tCIV. APP.) 268 S.W.
             .
     CITY ~+.N$7TOEIO       vs; COULTRESS, (CIV. UP.) 169
           . .    .
          There would be no legal sanction of such proposed ac-
tion of the commissionersI court of the ~fourcounties In creat-
ing a special office; the holder of whlch,.officeto work In the
                            _I.
-...   I                                               ,A




           Hon. Truett Smith, page 3


           four countieswith official character.
                                             :
                     Furthermore were a deputy’sherlff ,-or more than one,
           appointed under the above noted statutes,Akcles 6869 and
           3902, R.C.S., and the amendments thereto, or;for that matter,
           under Article 7l55a, supra, such appointee; or appointees,
           could serve as such In only one county,‘and~couldnot serve as
           such in the four counties.
                     Article 2927, Revised Civil Statutes,1925, provides:
                    “No person shall be eligible.to any .State,county,
               precinct or municipal office in this State unless he
               shall be eligible to hold office under the Constitution
               of this State, and unless he shall havg resided In this
               State for the period of twelve months and sixmonths In
               the county precinct, or municipality,in whfch he of-
                          f as a candidate,next prece~dlng
               fers hlmse;I                                 auy general
               or special e~lection and shall have been an actual bona
               fide citizen of s&l county, precinct;”or municipality
               for more than:six months. No person InelIgIble .to ~hbld
               office shall ever have his name~placedupon the ballot.
               at any general or speclal.electlon~or at-any primary :
               electlonwhere candidates are selected under’primaryel-
               ection laws of this State; and no such Ineligible candl-
               date shall ever be voted ucon. nor have votes counted
               for him, at any such gene&, special, or primary elec-
               tlon.m
                    Also see Article 2928, R.C.S., 1925.
                    We quote from the case of &lJRRAY,ET AL. vs. STATE,
           67 S.W. (2d) 274 as foilowsr

                    “It is well settled that a deputy sheriff is a pub-
               lic officer. TOWNS vs. HARRIS, 13 TEX. 507; 46 COR.JUR.
               p. 1062. He is,invested by law with some portion of the
               sovereign functions of the government,to be exercised
               by him for the benefit of the public, WECHF,M,PBBLIC OF-
               FICERS, 8 1; STATE VS. BUS, 135 MISSOURI, 325, 36 S.W.
               636, 33 L.R.A. 616."

                     Under the above quoted statutes and the cases constru-
           ing same, no person is eligible to any state, county, precinct
           or municipal office, Including the office of deputy sheriff,un-
           less he shall have resided in the state for the period of twelve
           months and six months in the county precinct or municipalityIn
           which he offers to serve as such of1icer.
                                                             .-,-A
                                        .,+!                  ~-


Hon. Truett Smith, page 4


          We conclude, then, that a four~countyoffice, as
proposed, if created,would have no sanction of law, and,
furthermore that any appointee appointed under the general
laws, or under Article 7l55a, could serve as such only In
the county of his residence and appointment,and could not
serve as a deputy sheriff in more than one county.
          Our answer’ to your questions (1) and (2) renders
unnecessary the answering of yoursquestions (3) and (4).
We merely point out that any individual employed by the ranch-
ers of the four counties, Irrespectiveof the ~methodof,pay-
ing his salary,would serve only under a private employment
contract, his activitiesand his office being of no official
character.
         Trustine that the koregoing answers your questions
satQifactorlly,we remain
APPROVEB SEP 20, 1939              Yours very truly
/s/ Gerald C. Mann
 A TTOREEY GEI@RAJL.
                  OF T-AS          @.T.ORNEYGENERAL OF ,TEXAS
APPRO@B: OPLBYOB COWWITTEE         By /s[ Wmr,J.,,Fannlqg
BY:      .BWB, CRAYRMAB            Wm. .J.Fanning, Assistant
WmJF:ob:wb
