             THEA~~ORNEY              GENERAL
                           OFTEXAS




Hon. R. T. Burns
County Attorney
Walker County
Huntsville, Texas
Dear Sir:           Opinion No. O-1649
                    Re: Is the salary of the half-time employee
                         of the county attorney, as described,
                         an expense that can be deducted in ar-
                         riving at the maximum salary of the
                         county attorney?
          Your recent request for an opinion of this depart-
ment on the above stated question has been received.
            We quote from your letter as follows:
          "I am'writing you with reference to a ques-
    tion that has come up in regard to my office;
    that is, in making my annual report and deducting.
    the expenses allowable under Article 3883 to 3899,
    inclusive, and the facts are as follows, to-wit:
         "I have employed here in my office a'young
   lady who works half time and goes to the Sam
   Houston State Teachers College one&half day for
   six days a week and, Ln my opinion, she Is a clerk,
   or office helper, ‘inmy office. Her duties are
   as follows: to obtain the mall'at the post office,
   file letters,prepare judgments and criminal cases
   where the defendants have.been convicted and carry
   said judgments to the County Court, or County
   Judge, for signatures and to the County Clerk for
   filing, preparing complaints and informatlons to
   be filed in the Justice and County Courts, and also
   to write letters, and several other things that
   I could give you. But I believe this 'ISenough to
   convince you that she is not a stenographer, but a
   clerk, or office helper. I want you to know the
   character of work that she~is dolng.
         "I would like for you tb give me an opFnLon
   as to whether or not, under law, I am authorized
   to deduct her wages as expenses of the office,
Ron. R. T. Burns, page 2          O-1649


    which I believe I am entitled to do. On the 15th
    day of July, 1039, I received a letter from the
    Honorable Tom 0. King, state auditor, about the
    9ame question, and he informed me .and I cuote from
    his letter, as follows:
          "1 wish to refer you to Article 3899,
       Vernon Civil Statutes,   which 1s the act
       regulating expenses of public officials in
       which your office would be fncluded, the
       article providing for all actual and
       necessary expenses Incurred in the conduct
       of the office. In my opinion, this author-
       ity cannot be questioned and is one coming
       under the authorized ad.mlnlstrativedis-
     ,~cretLon granted  to administrative  officials.
          "'It would se'emto me that the only ques-
       tion that could be raised in this instance
       would be'the necessity of such service In
       your office as.~~a
                        county offlclal. This mat-
       ter is included under the authorized dis-
       cretion to adminlstratjve authorlty confer-
       red by our statutes creating county adminis-
       trative offices and cannot be otherwise
       questioned.'
          "This.~is'the'letter~inwhich Mr.'King gave me
    hfs opinion on July 15, 1939. As stated above, the
    young lady, in,my.oplnlon, 1s just an office helper,
    and I believe that under 'the reasoning of thLs
    statute, Article 3903, and the other articles taken
    into conjunct,lon,,therewith,
                                I am entltled to this
    deduction; and I would appreciate very much having
    your opfnlon on this matter."
          The county offlcinl~sof Walker County are compensated
on a fee basls. The populatlo'nof said county according to
the last Federal Census 1s eighteen thousand five hundred and
twenty-eight (18,528):.
          Articles ,3883, 3891 and ,389g of Vernon's Civil An-
notated Sts$utes resd in part as follows:
          AptLcl.e   3483:

          "Except as o'therwlseprovided in this Aat,
    the annual fees that may be re~talnedby precinct,
    aountg and district offi.cersmentioned in this
    Article shall be 8s follows:
Hon. R. T. Burns, page 3        o-1649



          "1.' In counties containing twenty five
    (25,000) thousand or less inhabitants: County
    Judge, District or Criminal District Attorney,
    Sheriff, County Clerk, ,,County
                                  Attorney, Dls-
    trlct Clerk, Tax Collector, Tax Assessor, or
    the Assessor andcollector of Taxes, Twenty-
    four Hundred ($2400.00) Dollars each;.Justlce
    of the Peace and Constable, Twelve Hundred
    ($1200.00) Dollars each-~..."
         Article 3891:
         "Each offlaer 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 Article 3883, together wl.ththe
   salaries of his assistants and deputies, and
   authorized expenses under Article 3899, and the
   amount necessary to cover costs of premlum on
   whatever surety bond may be required 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 deem-
   ed excess fees, and shall be disposed of in the
   manner hereinafter provided.
         "In:counties,containing twenty-five thou-
   sand (25,000) or less ,inhabitants,District ana
   County officers named herein shall retain one-
   third of such excess fees until such one-third,
   together with the amounts specified in Article
   3883, amounts to Three Thousand Dollars $3,000).
   Precinct offfcers shall retain one-third until'
   such one-third; together with the amount speci-
   fied In Article 388 , amounts to Fourteen Hun-
   dred Dollars ($1400 . .....II
         Article 3899:
         "(a) Atthe close of each month of his
   tenure of office each officer named herein who
   is compensated on a.fee basis shall make as part
   of the report now ,requiredby law, an Itemized
   and sworn statement of all the actual and.neces-
   sary expenses incurred by him in the conduct of
   his office, such as stationery stamps, telephone,
   premiums on offlcla,ls'bonds, inoluding the cost
   of surety bonds,for his Deputies, premFum on
   fire, burglary, theft, robbery insurance protect-
   ing public funds, traveling expenses and other
Hon. R. T. Burns, page 4       o-1649



   necessary expenses. The Commlssloners’ Court
   of the county of the Sheriff’s residence may,
   upon the written and sworn applicationof the
   Sheriff stating the necessity therefor, pur-
   chase equipment for a bureau of criminal iden-
   tlflcat-Ionsuch,as cameras, finger print cards ;~
   inks, chemicals, microscopes, radFo and labora-
   tory equipment, flllng cards, filing cabinets,
   tear gas and other equipment in keeping with
   the system in use by the Department of Public
   Safety of this State or the United State Depart-
   ment of Justice and/or Bureau of Criminal Ident-
   ficatlon. If such expenses be incurred in con-
   nection with any particular case, such state-
   ment shall name such case.    Such expense account
   shall be subject to the audit of the County
   Auditor, If any, otherwise by the Commissioners’
   Court; and if It appears that any item of such
   expense was not incurred   by such officer or
   such item was not a necessary   expense of offlce,
   such item shall be by such auditor or court rejected,
   in which case the collections of such item may
   be adjudicated in~any court of competent jurisdiction.
   The amount of salaries paid to Assistants and
   Deputies shall also be clearly shown by such
   officer, glvlng the na+me,position and amount
   paid each; and in no event shall any officer
   show any nreater ,atnountthan actua!,Iypaid any
   such Assistant or Deputy. The amount of such
   expenses, together withtbe amount of salaries
   paid to Assistants, Deputies and Clerks shall
   be paid out of the fees earned by such officer.
   The Commlsslonersl   Court of the county of the
   Bherlff’s residence may, upon the written and
   sworn applloation of the Sheriff stating the
   necessity therefor, allow one or more automobiles
   to be used by the Sheriff in the discharge of
   his official   duttes, 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 General Fund of the oounty and
   they shall be and remain the property   of the
   county. The expense of maintenanoe, depreoia-
   talonand operation of suoh automobiles as may
   be allowed, whether purchased by the oounty or
   owned by the Sheriff or his Deputies personally,
   shall be paid for by the Sheriff and the amount
   thereof shall be reported by the Sheriff, on the
   report   above mentioned, In the same manny as
   herein provided for other expenses......
Hon. R. T. Burns, page 5            o-1649



              Artlcla 3902, Vernon's Civil Annotated Statutes,
reads     in part as follows:
               "Whenever any district, county or pre-
        cinct officer shall require the services of
        deputies, asslstants or clerks in the perform-
        ance of his duties he shall apply to the
        County Commissioners' Court of his county for
        authority to appoint such deputies, assistants
        or clerks, stating by sworn application the
        number needed, the position    to be filled and.
        the amount to be paid. Said application
        shall be accompanied by a statement showing
        the probable receipts from fees, commissions
        and compensation to be collected by said
        office during the fiscal year and the probable
        disbursements which shall include all salarles
        and expenses of said office; and said court
        shall make its order authorizing the appolnt-
        ment of such deputies, assistants    and clerks
        and fix the compensation to be paid them within
        the limitations herein prescribed and determine the
        number to be appointed as In the discretion of
        said court may be proper; provided that In no
        case shall the Commissioners' Court or any member
        thereof attempt to influence the appointment
        of any person as deputy, assistant or clerk In
        any office. Upon the entry of such order the
        officers applying for such assistants, de-
        puties or clerks shall be authorized to appoint
        them; provided that said compansation shall
        not exceed the maximum amount herelnafter set
        out. The compensation which may be allowed to
        the deputies, assistants or clerks above named
        for their services shall be a reasonable one,
        not to exceed the following amounts:
              "1. In counties havi     a population of
        twenty-five thousand (25,000
                                   Y or less lnhabi-
        tants, first assistant or chief deputy not to
        exceed Eighteen Hundred ($1800.00) Dollars per
        annum; other assistants,,de utiesor clerks not
        to exceed Fifteen Hundred ($ 1500.00) Dollars
        per annum each....."
          In counties where the county offlclals are compen-
sated on a,fee basis, Section (a) of Article 3899, supra,
specifically provides that the-amount of salarles paid to
assistants, deputies and clerks shall be paid out of the fees
earned by such officer. Article 3902, supra, provides the
Hon. R. T. Burns, page 6         o-1649



manner in which deputies, assistants or clerks or any dis-
trict, county or precinct offLcer must be appointed. Any
deputy, assistant or clerk of any district, county or pre-
cinct officer must be appointed in compliance.wlth Article
3902, to be entFtled to receive compensation as such. -Under
the above mentioned statute the salaries of assistants, dep-
uties and clerks are authorized expenses which may be deducted
in arriving at the maximum salary of their principals.
          Therefore, in view of the foregoing statutes you
are respectfully advised that it is the opinion of this de-
partment that when a clerk Is appointed by the county attor-
ney in compliance with Artiole 3902, the salary of such
clerk can be legally deducted in arriving at the maximum
salary of the county attorney as provided by law.
          Trusting that the foregoing fully answers your in-
quiry, we remain
                               Yours very truly
                             ATTORNEY GENERAL OF TEXAS


                               By a/Ardell Williams
                                    Ardell Williams
                                          Assistant
AW:AW:

APPROVED PEE 5, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
