HonorabLe E. H. Griffin
County Attorney
Young county
Graham, Texas

Dear Sir;                 Opinion No. O-3710
                          Rer Are the charges of $1600 for posting
                               notices and 7$$ per mile for each
                               mile traveled in posting notices of
                               the Special Senatorial Election
                               legal charges?

         Your recent request for an opinion of this department on the
above stated question has,~beaareceived.

        We quote from your letter as follows;

         "I wish to submit the following question to your
    department for an opinion:

         "The Sheriff of Young County recently posted
    notices in each voting precinot. advertising the coming
    senatorial election, and charged Young County $1.00
    for each notice and 7&# per mile for each mile traveled
    in posting such notioes. Is such charge a legal one?
    Young County, Texas, has a population of less than
    20,000 inhabitants, and the officials are compensated
    on R fee basis."

         Articles 2950 and 2995, Vernon's Annotated Civil Statutes,
read as follows;

         "Article 2960. The county judge shall cause notice
    of a general eleotion or any special election to be
    published by posting notice of election at eaoh precinct
    thirty days before the eleotioni which notice shall state
    the time of holding the election. the office to be filled.
    or the question to be voted onl provided that in local
    opt,ion,stock law and road tax elections, or any other
    special election specially provided for by the laws of
    this State, the notices of election shall be given in
    compliance with the laws governing said eleations respec-
    tively. If a vacancy occurs in the State Senate or House
    of Representatives during the session of the Legislature,
    or within ten days before it convenes, then twenty days
                                                                           .-




Honorable E. H. Griffin, page 2            O-3710



   notice of a special election to fill such vacancy shall
   be sufficient. Posting notice of an election shall be
   made by the sheriff or a constable, who shall make re-
   turn on a copy of the writ, how and when he executed
   the same."

        "Article 2995. The sheriff or any constable for
   serding copies ol t!:curder desjEnating the hounds of
   election precincts, or the el,eotionjudges, posting
   notices, and for serving all other writs or notices
   prescribed by this title, shall be paid the amounts
   allowed by law for serving oivil process. For deliver-
   ing election supplies to precinot judges, when they are
   not obtained by such judges in person, the sheriff or
   constable shall be paid such amount as the commissioners
   court may allow, not to exceed two dollars for each
   election precinct."

         Article 3933, Vernon’s Annotated Civil Statutes, reads in part
a5 follows:

         "Sheriffs and Constables shall receive the following
    fees:
         (1
          . . . .

        "Posting any other notices required by law and
   not otherwise provided for . . . . . . .#l.OO
         ". . . I

         "For traveling in the service of any civil process,
    Sheriffs and Constables shall receive seven and one-
    half (7%) cents for each mile going and coming; if two
    or more persons are mentioned in the writ, he shall
    charge for the distance actually and necessarily traveled
    in the service of same.
                          u
         “.   .   .   .


         Article 3087, Vernon's Annotated Civil Statutes, requires the
Governor to order an election in case a vacancy occurs in the represen-
tation of thj,sState in the 1JnitedStates Senate, and Article 3088,
Vernon's Annotated Civil Statutes, provides in part, "Every law reg-
ulating or in any manner governing elections or the holding of primaries
in this State shall be held to apply to each election or nomination of
a candidate for a TJnitedStates Senator so long as they are not in con-
fiict with the Constitution of the United States or of any law or
statute enacted by the Congress of the United States regulating the
election of TTnitedStates Senators or the provisions of this law."
-    -




    Honorable E. H. Griffin, page 3              O-3710



              In the case of Nelson v. State, 75 S. W. 502, it is stated
    'by posting as required by law is meant that the notices must actually
    be posted the requisite number of days before the election,is held.
    The fact that the notices may,have been subsequently torn or blown down
    would not affect the validity of the election. . .It

               We quote from the ease of Bigham v. state, 275 s. w. 149, as
    follows:

              "A sheriff is entitled to such fees as the statutes
         authorize, and for that reason the fact that the fees
         allowed may seem large in some instances or small in
         other instances  cannot enter into a decision concerning
         the statutes authorizing them. The Legislature has enacted
         the fee bill, and has fixed a maximum sum which a sheriff
         is entitled to receive as fees, requiring that the sxoess
         be paid into the county treasury.. The Legislature has also
         enaoted laws regulating and limiting the fees of officers
         from time to time. The wisdom or unwisdom of these acts
         is r!ota matter for the court to determine." (This ease
         was reversed on other grounds in 260 S. W. 1062.)

             It will be noted that Article 2995, supra, specifically provides
    that the sheriff or any constable shall be paid the amount allowed by
    law for serving civil prooess for posting notices and for serving all
    other writs and notioes prescribed by Title 50, Vernon's Annotated
    Civil Statutes.

              In view of the foregoing authorities, you are respectfully
    advised that it is the opinion of this department that the sheriff or
    any constable performing the .abovementioned services are entitled to
    $1.00 fc'rposting the election notices and seven and one-half cents
    (7$) per mile for each mile actually and necessarily traveled in per-
    forming this  service, in fee counties. However, if the sheriff receives
    an sx officio salary as authorized by Artiole 3934, Vernon's Annotated
    Civil Statutes, which provides in part as follows:

               "Sheriffs shall also receive the following compensation:
               11
                    .   .   .




              "2 . For sunsaoningjurors in district and county courts,
         serving all election notices, notices to overseers of roads
         and doing all other public business not otherwise provided
         for, not exceeding one thousand dollars per annum to be fixed
         by the ccmaissioners court at the same time other ex officio
         salaries are fixed, and to be paid out of the general funds
         of the county; provided, that no such ex officio salary shall
         be allowed any sheriff who had received the maximum salary
         allowed by law."
Honorable E. FT.Griffin, pagq 4                   O-3710




         The sheriff would not he entitled to remive the $1.00 fee
for pocking the election notices or the 'F+cents per m'le necessary
and aotually traveled in posting said election notices. Tf the
sheriff reoeives no ex officio colnpensationunder nrticle 3934, supra,
he would then he entitled to the aompansation as above stated.

         Trusting that the foregoing fully answers your inquiry, we
are

                                         Yours very truly




AW:'>M:wc

Approved by s/Grover Sellers

Approved Opinion Committee By-y-91iR   Chairman
