                                                     :


        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




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