I   -.    ,




                       E   *a     ORNEY     GENERAL
                                OFTEXAS




         Honorable V. P. Sexton
         CoiintyAttorney
         Orange County
         Orange, Texas
         Attention:   Hr. 3. IT. Adams
                      Assistant
         Dear Sir:                 Opinion No. o-5968     -~
                                   Re: Authority of Constable of Ora’bge
                                        County to appoint deputies ana
                                        incur allowable expenses of of-
                                        fioe.
                 We have received your recent pequest for an opinion on
         the following subject z
                  Authority of Constable of Orange County to
              appoint deputies and operate his office upon an
              expense account to be allowed by the Commlsslon-
              ers Court, to the same extent as the sheriff.
                 Orange County has a population of 17, 382, according
         to the 1940 Federal Census, and Is operhttingon a fee basis in
         the compensation of its county and precinct officers, accord-
         ing to the records of the State Comptroller’s Office.
                 Article 3902, Vernon’s Annotated Civil Statutes, pro-
         vldes, In substance; that whenever any dlVtriCt,  county or
         precinct offFoer requires the service of deputies such officer
         shall apply to the Commissioners t Court for authorltg to ap-
         point such deputies, and that such court shall make its order
         authorlzlng such appointment and fix the compensatfon,to be
         paid such deputies and determine the number to be appointed as
         in the discretion of said oourt may be proper.    ,(‘,
                                                              ~,’
                 Article 687ga, Vernon’s Annotated Civil Statutes, reads,
         in part, as follows :
                  “Sec. 1. The duly elected Constable in eaoh
              Justice Precinot having a eltg or town of less
              than eight thousand f8;000) population according
              to the preceding Federal Census may appoint 6ne
              (1) Deputy and no more; and each Justice Preoinct
Honorable W. P. Sexton, page 2


    having a city or town of eight thousand (8,000) and
    less than forty thousand (40,000) population accord-
    i   to the preceding Federal Census may appoint two
    (3 Deputies and no more * and in each Justice Pre-
    cinct having a town or city of forty thousand
    (40,000) population or more accordi   to the preced-
    ing Federal Census may appoint five"i5) Deputies
    and no more, and each and every instance said Deputy
    Constables shall qualify as required of Deputy Sheriffs.
       "Sec. 2. When the Constable In each and every
   Instance named and described in the preceding section
   of this Act shall desire to make appointment of a
   Deputy or Deputies, as the case may be, said Constable
   shall first make written application to the Commls-
   sloners' Court of his County showing thatit is neces-
   sary for such Constable to have the Deputy or Deputies
   requested In order to properly handle the business of
   his office .originatingin the Precinct ln which such
   Constable has been eleeted, gfvlng the name of each
   proposed appointees; and if the Commissioners' Court
    shall find that the Constable is in need of the Dep-
   uty or Deputies requested to handle the business
   originating in his Precinct, then and In that event,
   and in that event only, the Commissioners' Court shall
   approve and confirm the appointment of the Deputy or
   Deputies provided by this Act."
        Article 3902, at the time of Its passage having sub-
stantially the same provisions as po?nted out herernabove, was
enacted In the form of an amendment by the 42nd Legislature in
Regular Session and approved May 26, 1931, (General Laws of
Texas, 1931, Chap. 214, pe 364).
        Thereafter at the same session, the said 42nd Legls-
lature enacted said Article 6879a, which was approved May 27,
1931 (General Laws of Texas, 1931, Chap. 280, p. 503). In
the case of State v. Johnson, 52 S.W, (2d) 110 (writ dismissed),
it was said in regard to Articles 3902 and 6879a, as follows:
       "Two days after the passage of article 3902,
   an amendment was passed thereto,~article 68,79a,
   which does not affect the provlsi~onsof the former,
   except to provide for the number of deputies that
   can be appointed. I . e *'I
        Therefore, it seems that the appointment of deputy con-
stables in your county should be made under'authorlty of both
said Articles (3902 and 6879a), and the number of deputies
limited as provided in Section 1, of said Article 6879a.
Honorable W. P, Sexton, page 3         o-5968


        As to expense accounts and expenses of office, in re-
gard to the constable and sheriff of your county, we refer you
to the following articles:
        Article 3899, V. A. C. S., provides, in part, as fol-
lows:
   ure iffaiff;;,theclose of each month of his ten-
                  each officer named herein who 18
   compensated 0; a fee basis Shall make, as part
   of the report now required by law, an itemized
   and sworn statement of all the actual~and neces-
   sary~expenses Fncurred by him in the conduct~of his
   office such as stationery, stamps, telephone, prem-
   iums on offFeialsl bonds, including the cost of
   surety bonds for his deputies, premium on fire, bur-
   glary, theft, robbery insurance protecting public
   funds, traveling expenses, end other necessary ex-
   penses; provided, t.hatin addition to the officers
   named herein, the county treasurer, county auditor,
   eountg road eommlssioners, County school superinten-
   dent, and the bide and animal inspector shall like-
   wise make a report on the premiums on officials'
   bonds, including the cost of surety bonds for any
   deputies, and said premiumsshall be subject to pay-
   ment out of the fees of safa office, as herein
   otherwise provided for the officers namecl;and pro-
   vide3.further that if any of the officers so desig-
   nated aYe on a sala?g rather than a fee basis,
   then all such bond premiums for officers and their
   deputies shall be paid from the General Fund of
   the county, The Commissioners Court of the county
   of the sheriff's residence may, upon the written
   and sworn application of the sheriff stating the
   necessity therefor, pUrchase equipment for a Bureau
   of Criminal Identiff@atlon such as cameras, finger-
   print CaPaS, inks, chemicals, microscopes, radio
   and laboratory equipment, filing 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 States Depart-
   ment of Justice and/or Bureau of Criminal Identlfi-
   cation. If such expenses be Lncurred In connection
   with any particular case, such statement shall name
   such case. Such expense account shall be subject
   to ,theaudit of the county auditor, if any, other-
   wise by the Commissioners Cburt; and if it appears
   that any item of such expense was not incurred by
   such officer or such item was not a necessary ex-
   pense of office, such item shall be by such auditor
Honorable W. P. Sexton, page 4         o-5968


   or court :rejected,-._.
                       in vhich -.
                                 case"the collections of
   such item may be adjudicated Inany court of com-
   petent jurisdldtlon. The amount of salariespaid
   to assistants and deputies shall also be clearly
   shown by such offycer, glovingthe name, position,
   and amount paId each; andln no event shall any
   officer show any~greeter amount than actually
   paLd any such assistant or deputy. The amount
   of such expenses,/tbgether with the amount of
   salaries paid to assistants, deputies, and clerks,
   shall be paid out of the fees earned by such of-
   ficer. The Commissioners Court of the county of
   the sheriff's residence may, upon the written
   and sworn application of the sheriff stating the
   necessity therefor, allow one or more automobiles
   to be used by the sheriff in the discharge of his
   offlci.alduties, which, Lf purchased by the county,
   shall be bought in the manner prescribed by law
   for the purchase of supplies and pald for out of
   the General Fund of the county, and they shall
   be and remain the property of the county. The
   expense of maintenance, depreciation, and opera-
   tlon of such automobiles as may be allowed,
   whether purchased by the county 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 manner as herein provided
   for other expenses.    As,amended, Acts 1941, 47th
   Leg., P. 1390, chap. 629, FJ1."
       Article 3899b, W. A.C.S,, provides, in part,as follows:
       %ection 1. There shall be allowed to County
   Judges, Clerks of the District-and County Courts,
   Sherlffs, County Treasurers, Tax Assessors and
   Collectors, such books, stationery, Including blank
   bail bonds and blank complaints, and office fur-
   niture as may be necessary for their offices, to
   be paid for on the order of the Commissioners
   Court out of the County Treasury; and suitable
   offices shall also be provided by the Commissioners
   Court for said officers at the expense of the
   county. And such books and stationery as are neces-
   sary in the performance of their duties shall also
   be furnished Justices of the Peace by said CommIs-
   sioners Court. Provided all purchases herein must
   be approved by Commissioners Court, and must he
   made under the provisions of Article 1659, Revised
   Civil Statutes of Texas, 1925,"
Honorable W. P. Sexton, page 5                 o-5968



        You will note that constables are not mentioned in
said Article 3899b.
              Article 3891,   v. A. C. S., provides, in part, as
follows   :

         "Each officer named in this Chapter shall
     first out of the 'currentfees of.his office pay
     or be paid the amount allowed him under the pro-
     visions of Article 3883, together with the sal-
     aries of his assistants and deputies, and author-
     ized expenses under Article 3899, and the amount
     necessary to cover costs of premium on whatever
     surety bond may be required by law. If the cur-
     rent fees of such office collected in any year be
     more than the amount needed to pay the amounts
     above specified, same shall be deemed excess fees,
     and shall be disposed of in the manner hereinafter
     provided."
        The authorized expenses which may be deducted under
Article 3899, supra, are such expenses as are enumerated there-
in, and only those expenses which are authorized under the
statute can be deducted. Such expenses are to be paid from
fees earned by the officers, and are allowed to both, con-
stables and sheriffs.
        The i~temsof expense mentioned in Article 3899b, supra,         ,
are allowed only to the officers therein mentioned by the ex-
press terms of said article, therefore, constables would not
be allowed such expenses.
              Trusting this is satisfactory, we are
                                        Yo.ursvery truly
                                      ATTORNEX GEI\TERAL
                                                       OF TEXAS

                                        By s/Rcbert L. Lattimore, Jr
                                             Robert L. Lattimore, Jr.
                                                           Assistant

RLL:fo:wc
APPROVED APRIL 29, 1944
s/Gee. P. Blackburn
ATTORNEY GENERAL OF TFXAS
Approved Opinion Committee By s/BWS Chairman
