       OFFICE   OF l-NE ATTORNEY   GENERAL    OF TEXAG
                            AU8TlN




Hrmorablr  Forrester   Hanoook        i '-
Dietriot Attorney
Wasahaohie, Terse

Dear Sir:




          Your reoont rep                     ion of thi.8 De-
partmont on the queetione                     tatod has bean
reoeirsd.




                                 3.~~3&laoo.oo Sor aaputy
                                 pear on the minute8 of
                                  of zllic  county any or-
                            eputy hire oi any deputy ax-
                        thn at 975.00 per month. Thlr
                         that on the 1st day of 38nuary,
                         his deyuty before the aorrunlssion-
                   nd intro&wed     him an euoh and thare-
                  to the oounty alerk*s    office    and tiled
       the proper paper8 a&d &x&l his.r~es      inoident   to
       deputizing thla given man, but he did not preeant
Honorable     Forreater        Eanooek,   Page B



     any written applloaticn    to the oommlseionsre~
     court with reference    to the salary per month
     or the name of the fn&iridual desired to 8erve
     88 deputy.   In this partioular,    the oomlcsion-
     ers* oourt has no written order approving the
     lndividusl  or the salary of the lnO,ividcal who
     1s olebaed to be ths deputy by this said aon-
     etnble.
           “At the expiration of twelve Donths this
     constable filed an expense aocount acvoring the
     sntlre year*8 operation.   Ha did not file dur-
     ing 1WB a nont.hly sxpenae eccount.   In hire an-
     me1 ex?nnse aooount is alaima the following
     items, to-wit:
           “Telephone and telegraph,  printing and
     &amps, unlforiti, siren,  badge, and oar expense,
     misoellaneoue.
           ‘With referenoe to the above stated              racts,
     we would like to ascertain  the ‘following             infor-
     mation, to-wit:

           “1.  Ar6 the ftsnu of             expense Li)fe refer-
     red to legal,   and aa suoh,            aan they be olalmad
     by a oonstable?

           “2.   Can a oonstRble employ a deputy in the
     manner   above set forth and pay him a salary not
     approved or agreed upon by the ooz&sslonersc
     court  and then leeally deduot the expenres, inoi-
     dentel to 8uah employment from hla annual repcrt?
              ‘3.         In auditing the annual report of a oon-
     stable         are     the unoolleated ieee rsportetd by said
     oonatable            to be oonsidered  as cash items in aa-
     aertslning             the total gross earnin@?
          “4.   Can a codesloners    crourt under the
     above stated faots,   allow a ooaetable no oonduot-
     lng h48 business a reasonable amount or expenses
     to be deduoted rrotn his total gross fees?    An@
     oan they, in turn allow suoh oarstablo    a reason-
     able sum o? money tar deputy hire, said su& to be
Honorable Forrester            Hanoook,   page    3



        Qeduetabla from said oonetable’s              total    groaa
        reee oolleoted?
                  In this oonneotion Ii the faote be as
                 -5.
        above rtated,  what would your departmont reoom-
        mend a8 a proper ~rooedure to enroroe  the rIGhts
        of a giran osunty toward a oonstable acting   as
        herein stated?
                 ACCOrdbIg to tha, la8t     Federal Cenrru (19301 $111~
County has a population            of 33,936 Inhabitants.
                 Artiole   3883, VernOB*s Annotated           Civil    Statutes,
reads    in     part   as r0ii0wst

               Vxaept a8 otherwise provided In thir Aot,
        the annual fees that may be retained by preoinot,
        county and dIetrIGt OffIoer8 ment~ioned In tt48
        Artlole   shell be as followar
                 *.    .   l




               ‘3.   fn oountles containing a8 many as
        thirty-seven    thousand rive hundred and one
        (37,801) and not more than rixtr thousand
        (60,000) Inhabitants,     or oontainlug a aity of
        ovei twenty-fire    thousand (85,000) inhabitanta:
              . Justlos or the Peaoe and Gomtablo,    Elght-
        ;ei Wndrsd ($1300.00) Collara laoh. n
          Arti    3391, Pernoncs                 Annotated Clril       statutse,
reads In part as followsr
                 -gaoh officernamed in thla Chapter rhnll
        firet     out
                  of the current  fee8   of his offioe pay
        or be paid the amount allowod    him under the pro-
        vlsion~ of Artiolo 3383, together with the aal-
        lrfxts of his amilstantrr  and deputlem, and author-
        ized exprme~ under Artiolr     3399, and the amount
        neoesaary to oover oortr of prealum on whatoror
        surety bon6 111’3.9
                          be required by law.    rr the our-
        xr.t roes of 8uah otrioo oolleoted     In my year be
        snore than the amount nesdod to py the amoMtS
        above opo%fid,    sane oh611 be doomed exaasa ZOO@,
        and ahall be disposed  or In the manner herofnar-
        tsr     provided.
Honorable yorrastor         Hanooak, Page 4


              n. . .

              “IA oounties soataining as many as thlrty-
        seven thousand, flro hundred and on8 (37,301)
        and not more than sixty thousand    (60,200),   or
        containing a oity or cwor twenty-rloo     tho::aand
        (83,000) InhebItants,   . . . Prsolnot offioors
        shall retain ono-third   until suah one-third,     to-
        gether with the amuut speclflod     In Art-1010 3333,
        auounta to Twenty-two Hundred Wllars      ($8300).s

              Artlsles3398,      8897, ond 3098,   Vernon’s Annotated
Cirll    statutes   reads     aa follows;
              *Art. 3890.   gaoh dirtriot, oountJr and pn-
        oinot officer ohs11 keep a oorreot statement of
        all fees oarned by him and all sums ooming Into
        his hands as doposits for costs,      together with
        all trust   funds place6 in the registry     of the
        Oourt, foes of ofrlos’and     oomissIoners    In a book
        or In books to bo provided hix for that purpose,
        In whiah the orrioor,    at the tiae when such do-
        posits are aade or suah foes and commissions are
        oarhed and whon any or all of suoh fundsshall
        came into his handa, shell ontsr the s-o!        and
        it shall be tho duty or the sounty auditor In
        oountlos having a county auditor to annually exaa-
        ine the books and aooounta of such offloers       and
        to report his rindlngs to tho next suooeedlng
        grand jury er diatriot    oourt.    In oountlos having
        no oeuntp auditor,    It shall bo the duty of the
        Comml~slonsrs~ Court to sake tho esaminstlon of
        said books and aaoounts or hatr the 881110     made ah4
        to make report to the grand jury as herelnabovo
        provided.”
               “Art.  3897.  gaoh dlstrist,    oounty and pro-
        oinot offlaer,    at the close of eaoh fiaoal ysar
        (moeltbsr 31st) shall make to tho dlstrlot       oourt
        or the ommty in whiah he residea a sworn rtate-
        5snt In trIplIoato     (on rorsux deelgned and approved
        by the State Auditor) a oojq of whiah atetsmnt
        shall be forwarded to the QtRte Audltor by tho
        olsrk of the dlatriot     court of mid oounty within
        thirty    (30) daya after the sams has been filed      In
        his ofrice,    and one oopy to be rii0d with the county
Honorable Forrester    Hancoolt, Page B


     auditor,   ii any; othsrrwlse aaid oopy shall bo
     filed with the Commlssioners~ Court.         said re-
     port shall show tho am0unt of all foes, oommIs-
     slone and aomp3nsations whatever oarnsd by said
     officer   during the fiscal    year; and seoondly,
     shall show the arwunt or rsos, aommlssions and
     oompensatIo;-is collected    br him during the fI8-
     cal year; thirdly,     said report shall contain an
     Itemized statement of all fees, o0mmIssIons and
     aonpensatione earned during the fiscal        year whloh
     wore sot oollsoted,     tog3ther with the 5suse of
     the party 0wIng eaid fees, ooizaIssIons and oom-
     ge55atI~nr.     Said report ehall be fllod not later
     then February 1st following      the olose of tho
     fiscal   year and for eeah da7 after aaid date that
     said report remaIna not filed,       said offioer  shall
     be liable   to a penalty of Twenty Five ()E6.00)
     Dollars,   which may be recovers6 by the county In
     a suit brought for auoh purposes, and la addition
     said offioor    shall bo subject to removal rromof-
     fioe."
           "Art.   8898.   The fIsoal year, within the
     meaning of this Aat, ahall begin on January 1st
     or eaoh year; and oaah dIstrIct,      oounty and pre-
     oinot offloer    shall ii10 hIa report and make tho
     final setslemont required      In this Aot n0t later
     than February 1st Of eaah year; provldod, how-
     ever, that ofrioers     reoelving an annual salary
     as oompansatlon for their s3rvloas shall,         by the
     alose of each month, pay Into tho orriaers*         salary
     Fund or funda, all fees, ooamIrsIom and oomp6tn-
     sation eollaotod     by him during raid month. Whon-
     ev3r euoh orricer     serves for a fraotlonal     part of
     tho fiscal    year, he shall novortheleos     fllo his
     report and roeke final sottlemsnt for suoh part Of
     ths year as ha s3rte8 and shall be entitlsd         to suoh
     proportlonste     part of his ooapensatlon as tho
     the r0r Ns samI           bears to the entire year."

           yaragnph   (a} or Art1018 JSQ9, Vbmon's       Annotated
c1v11 Statu~tos, reads as follows~
              3(a)  At the cloee of eaoh month of his
     tenure     of orrlao eaoh offloer named horeia who
Honorable   Fbrrester     Hancook, Page 6


     18 eoixpenaated on a fee basis shall I;iake aa
     part or the report          now requlrea by law, an
     ltsmized and sworn strte;ant              of all the actual
     and neceeeary exponaes Incurred by bin ln the
     conihct.    of h:s office,       such as stationery,
     stanpa, telephonr,          preaiuae on offlaials~           bonde,
     iraludlng       the cost of surety bonds Sor his Depu-
     ties,    prenriukzion fire,       burglary,     theft,    rotbery
     insurance protecting           public    funds,    traveling     ex-
     pm5es     ana other neeessnrp           expenses.       The com-
     missioners’ Court of the aounty of the GherlfPs
     reriaenoe may, upon the written ana sworn ap-
     pliaatlon       of the Sheriff       rtating the necessity
     t herefor , purchase equipuent for a bureau of                     .e,_.-
     criinlnal ldentlficstioa           such as oaneraa, finger
     print cards, in&a, ahmiaalu,                miorosoopes,      radio
     and laboratory         equipment, filing        cards, fiLlng
     cabinets,       tear gas and other equlpm3nt in keep-.
     lng with the ayatem in use by the Department of
     ?ublle Safety of this State or the United States
     Department of Justice and/or Eursau of Criminal
     saontiiioation.           If such expenses be inourrea
     in aonneation with a;ly particular                aam,    suet-,
     atatcment       shall name such ease.           Such expense aa-
     count ahall        be subjeot     to the audit of the
     County Auditor,         ii any, otherwise by the ~ommla-
     aloners’ Court; and if it appeara that any ltea
     of such expense wae aot 1nOUrred by suah oftieer
     or suah item was uot a neoeasary expense of of-
     fice,    suah it&m aball be by such auditor or oourt
     rejected,       in nhlah ease the colleotlona             of euah
     item 5ay be aajuaioatra            in any 00urt        of ocmpetent
     jurisdiction.          The aaouat of salaries           paid to
     Aeeistants       and Deputies      nhall also be olearly
      ahowu by such offiaer,           giving the aam, position
     and amount. said eaoh; arid in no event shall any
     ofilcer      show any greater        amount than actually         paid
     any suoh AS8i8tant           or Deputy.      The amount of 8uoh
     expmaes,        til5ether with the amount of salaries
      paid to Assistanta,          Deputies and Clerke shall be
      pa/d out of the fees earned by ouoh oiiicer.                      The
      Coainlseioners* court or the oounty of the Sherlifts
      resi2encs L;ay, upon the written and 5worn applloa-
      tlon of the Sheriff          stating the necessity          therefor,
      allow one or gore autoolobileei            to be u&w&by tha
      sheriff     ic the dlaoharge of hle official               duties,
      whloh, if purobaaed          by the Oowty, shall be bought
E@norabls Porreater Banoook,   Pago 7


     in the mannor preooribd by law for the purohass
     0r ruppllee and paid r0r out or the f#enoral muid
     of the oounty and they shall bo and raasin the
     property of the oounty. The sxpenao of malntsn-
     anae, dbproolatlon and operation of ruoh autoao-
     bile8 as may bo 6llows6, whether purohaseb by the
     oounty or mined by the Sherlrr or his Deputie8
     psr8onall.y. shall be paid ror by the Sheriff aad
     the amount  thonof 8hall bm reportad by ths
     6herl?r, on the report above mentlonod, in the
     oame mmner a8 honln prorldoU for other sxpsnsss.*
           Artlsls SOOS, roaU8 in   part a8   follow81

          *whoaover any dl8trlot. oounty or preolnot
     ofriosr 8hal.x rspulrs the 8enloos 0r drputiar,  sS8i8t-
     antr or olorkr ia ths Qorformanoq o? his dutlss he
     &all appll to ths aountr 0omals*lonorr~   Court ot
     his oounty for authority to appoint ruoh deputhr,
     assistants or olerks, rtatin@ by swern applieatloa
     ths number nsedsd, the po8itlon to be rlllod aB4 the
     tkmount to be paid. Said lpplloation shall bo ao-
     oompanlod by a statement showing ths probable re-
     ooipts rrom rs08, 00a8~18s10ns and ooapwmatlon to
     be oolleotod by wld oSflor during the flsoal mar
     and the probable Ul8borssaent8 rhioh shsll looluds
     au   ralariar   and expen8*8 or wd   orrioe)   and   raid
     CoUrt 8hall make it8 Order aUth@riZing   ths lpQOint-
     ment 0r suoh daputie8, ,a*airtantr  and olerk8 an6
     rix the ooDqmis~tlonto ba paid thar within the
     llmltatlon8 hsreln prseoribo4 and determlno the num-
     ber to be appointed a8 in the dlroretlon o? raid
     aourt may be prowrg provldsd that in II@ osse r&all
     tho Coamlo8loner8~ Court or any memberthenof         at-
     tempt to laflusnoe th8 lppolntwnt Of any porron a8
     deputy,   assistant    or olerk ln any ~ffloe. Upon tha
     entry of 8uOh ordqr th8 ofiloera applyin0 for ruoh
     assl8tants,    deputies   or olerkl shell ba ruthorissd
     to appoint them; provided Mat said oo~psnsatiQn
     ehall not exossd the maximwn amount      hsrrlnaiter  8et
     out. T& oompensatlon whioh may b8 allowsd to ths
     depUtifJO,a88i8tWlt8     Or Ohrk8  above pameA iOr their
     servloer shall bs a reasonable 011s. net to SxOosb
     the r0ii0wing amOWit8: . . .*
                                                                     _
                                                                         fx%2
Honorable        Forreetar   Emcook,   ?wge B


           The 8alary of a oonstabla in Ellis Count umlsc
Artlale 3803, supra,  la Eighteen madred  Dollar8 ( %leoo.00)
pZW one-thlrb   Of the lees OOllaOtOd in 020088 of 8uah
amount 0s ralary, as provideb in Artlalo 3891, 8upra, 80
that such total ealary ahall not exoesd the sum of Twanty-
two HunUred Dollar8.
                 In this oonneotlon w4 quot4 irom our Opinion No,
O-131,     a8    fOllOW8:
               We oonstrue Artlola 3eJO1to mean that in
         oomputln(lthe exoess f408 to be allow44 these
         orrioers it 18 not p4rmlralbl.eto ooapute ona-
         third or all fees oolleotod   but only one-third
         of suoh feee in axoees of end above $1,600.00.
         That la to 8(L7, if the total re0s oolleatea
         should be ~3,000.00, the Juatloe or the Peecre
         and Constable would be eatltl,sd to retain one-
         third or 01,EOO~OOwhloh would be the Bum of
         ~400.00, thereby rnaklng the total salary and
         exoew fee8 allowed to euoh offloer8    to be the
         8~ 0s $2,200.009=
            In t&e ease of Pierson, Juetlao of the Woo,         et
al., v. Galvseton (loumy, 131 8.8. (26) 27, referring        to
Article   Ea899, it was helb, amon@ other thiQ$8, that the pur-
p080 0s the statute requiring aouoty 0rrioer0       to nuke a
lconthly statement of expeneae inaurred in the oonduot of
their orrioea Wa8 to provide a mean6 0s asosrtalning        the
oorrrotaees   of ruoh exgxmse Itune saoh month a8 thop are
lnourrea and that the aotual expensea paid or lnourred
by auoh offloers    oonstltute  the measure of the oiflalalia
right to reooup5ent from the oounty.       Thla @aBe further
holds that a Justice     of the PIIaoe was not entitled  to ro-
oover from th$ county Items 0s expenses olalmed ?or jmrtage,
waveling    expenses, and messenger servloe during oertaln
yeare while ln oftfoe,     where the Juatlce did not rrndm
monthly rtatem4nta of suoh expeneee a8 required by statute,
but merely filed annual reports imtimating the expen8eia in
lump sun anounts.     This 0~84 a180 further holds that the
statute requiring oounty offioers to make a monthly etate-
mont of axpnsaz inourmd in,the oonduot or their oiYioe8
cannot bs SVad85 by givlilgyearly eetimatea 0r expnsea in
1UB~     8Ua    8InOUUtS.


          R4xerrlng t0 Artlole 9899, eupra,        ‘~8 quote from
the above aentlonod case as follows!
Honorable    Torrentor   Hanoook,   Page   9



            *The manliest    purpoea of this 8tatute    was
      to provide a means of astwrtalnlng       the oorreot-
      ness or expense iteme each month as they ars in-
      ourred.    Thr aotual erpenees paid or lnourred
      oonatltute   the meaeure of the ottlcfal~e      right
      to reooupnent.      The monthly itemization    13 for
      the proteotion    of the oowlty by affording     a
      mean3 of ascertaining     the faot and emount of
      ruoh olalmed item of expense and whether it was
      properly ohargeable l e ouch.      It le luanifeet
      Srom the annual report3 and oonflrmed by the
      evtdsnoe that thene expensea were msrely as-
      timated and 3 lump eua given eaah year.         The
      stetute would be of no ~31~s if Its oalutory
      provisions   oould be lvaded in this manner. . .-
            The authorized expenresl whioh say be doduated
Under ArtiOle 2899, supra,       are ouoh expanrrer as are enu-
-rated    therein,   and an offloer   to be entitled   to make
euoh deductlone au3t comply with Article 5899, sugra, bl
making an itemized and sworn 8tateaient of all. the actual
and nsoeseary    expenses  inourrad by hizn in the oonduot of
his office    at the olosa of each month of hi@ tenure of of-
rioo. Only those expenses whloh are authorized Under the
atatute oan be deduoted.       From tho faote stated In your
la&tar, the oonstable di8 not m&s an itoti%ed and #worn
monthly rtateummt ot the axpanaon lnourred by him in tha
oonduat of his offioe     a3 require6 by Artiole     3899, supra.
Thererore,    the opinion of the oourt in the oaeo OS Pierson,
Justice of the Peaoe, et al. V. (.i3lvOetOA (%Unty, BUpl!a,
anmars your that question.
            ~rtlole  S908, eupra,    spsoifically    provides the
nmmsr and mthod of prooeduro that any diotriat,              oountp
or preoinot otfloer    nzust follow when euoh ortloer        requtre8
the services    of Ueputiee,   as8istants,    or olerks In the per-
formanoe of hi3 dutlee.      Under the facts stated In your
inquiry,  the constable did not oomply with any of the pro-
visions of the above mentioned etatute.           Therefore,   your
eeoond queetion is reap%otfully       answered ln the negative.
              IIX answer to your third quaetlon, you are advised
that it     is our opinion that in auditing the annual report Of
Honorsble   Torrester    Eanoook, page 10     ,


the constable,    th% unoolleoted is%% reported by said oon-
stable are not to be considered as oa%h item% in asoertaln-
lng t~he total Fjross earning%, but %uoh tee% are to be aon-
sidered as tee% earned during the tiaoal     year and not
collected,   which shall be ahown in the aworn staterent  of
the constable a% -,rovided br Article   3091, Vernon*% AMO-
tated   Civil I_
               %at&es  .
            In view of the foregoing authorities and under the
etaterrrent of tacta above quoted, your fourth que%tlon is
answered in the negative.
           With referenoe   to your fifth  quertlon,     it is our
opinion that the proper ~.rooedum to entoroe the right Oi
the county under the above mentioned taots would be for the
county to institute    suit on the oon?tahlets    bond to,QOlleOt
any and all fees that the oonstable la lllegallp        withholding
fropl the county whioh the oounty is legally      entitled    to.
             Trueting   that the foregolng   fully   answer% your in-
quiry,   owe are

                                             Yours   very   truly

                                         ATTOIZNSYCXiUliALOS?TEXAS


            GENEiRAL                                 Ardell    Williams
                                                              Aesi8tant


AXIew
