HonorableA. A. Miller           opinionITO.O-1206
CountyAttorney
Hcwton county                   Re':,May fees undqr Article 1055,
Newton,Texas                         Co& 'ofCriminalProcedure,as
                                     amended,46th legislature,be
                                     peid.bywarrant out of the jury
Dear Sir:                            fund of the county.

          Your requestfor an opinionof this Departmentunder date of
July 29, 1939,reads substantially8s follows:

          Under Article 1055, as amended,by the 46th Legislature,
House Bill 190.205, authorizingthe county clerksto "issuehis warrants
on ,thecountytreasurer.infavor of such officer,to be paid out of the
road a$ bridge fund, or other funds not otherwiseappropriated," can
the countyclerk issuehis warrant to be paid out of the jury fund, if
there be an excess?

          The above portionof Article 1055, Code of CriminalProcedure,
as amended,which is correctlystated in your request,authorizessuch
fees to be paid out of the road and bridge fund or other funds not
otherwiseappropieted. The jury fund of the county is a constitutional
fund, being made up of taxes leviedunder the constltutionsl  limitsand
certainstatutoryfunds which are specificallyappropriatedand dedi-
cated to specificuses.

         Article 1628,Revised Civil Statutes,1925, relatingto the
jury ~fund,provides:

         ?Phe funds receivedby the countytreasurershall.beclassed
as follows,and shall be appropriated,respectively,to the payment.of
all claimsregisteredin the first, second and third classes: (1) All
jury fees, all money receivedfrom the sale of estrays,and all occupa-
tion taxes."-

         Article 1626,RevisedCivil Statutes,1925, claisifyhg all
cla~imsagainste county,directs that all jury scrip and scrip issued
for feedingjurorsare payableout of funds so receivedof the first
class.

            Article 1630,,
                         RevisedCivil Statutes,1925, provides:

         "The commissfoners' court by en order to that effectmay
transferthe money in hand from one fund to another,as it may deem
Hon. A. A. Miller,pege 2 (0-1206)
necessary and proper,exceptthat~thefunds which belong to class first
shall never be divertedfrom the paymentof the claima registeredin
class first, unless there is an excess of such funds." (Underscoring
ours)

          The SupremeCourt in Carrollv. Williams,202 S. W. 504, held
that the foregoingstatutes only appliedto those fund8 purely statutory
and that Article 1630, supra, shouldnot be held to embraceany of the
five classesof county fund8 specificallydesignatedin Section 9,
Article 8, of the Constitutionof Texas.

          Any effectto be givenArticle 1630,supra, es to the transfer
of county fund8 shouldbs con8ideredin the light of the opinionof
Carroll-f.Williams,euprs,and cases cited thereinwhich furnishu8
the only authorities involvingthis statuteand its effect under Article
8, Section 9, of the Constitutionrelatingto the transferof county
funds. In pasein g on whether or not a legal excesswould exist as
would authorizea transferand if 80, into what funds, constitutional
or special,asme may k transferred,all facts necessaryto presentto
this departmentthe actual conditionof the county'sfinsnc88;the
stetu8 of each fund measuredby the current,demands chargeableagainst
same and th8 varioustax rates and assessmentseffectingthe particular
fundswould have to be considered. The single propositionremains
that until ruch legal transferis made, any excess remainsa part of.
the jury fuud~andby the Constitutionand statutes,such fuud is appro-
priatedfor specificpurposes.

          In viewing authorities cited herein, it appear8that the
followingsettledrules governsuch transfers,keeping in mind that
such cla88e8of funds authorizedby the Constitutionand statutes are
appropriatedto the severalclassifiedpurposes;first, the commis8ioner8'
court may not, by any unauthorizedclassification,  defeatthe payment
of just claimsor destroy the right of holder8of registeredclais; ,,
under Article 1627,RevisedCivil Statutesof 1925, to have their claima
paid out of the appropriatefunds in the order of registration.Clark
and Courts v. San JacintoComty, 45 S. W. 315; second,where a tran-
sfer is made into a constitutional fund, which vi11 swell the expendi-
tures therefromfor any one year beyond the limitationof the tax rate
leviedand moneysraised for the purposesfor that particularcl.ss8
funds, such transferwould be prohibited. Carrollv. Williams,supra,

           It is, therefore,the opinionof this departmentthat the
countyclerk is not authorizedto issuehis warrant on the county
treasurer,to be paid out of the jury fund, in favor of any officer
for fees accruingunder Article 1055,Code of CriminalProcedure,as
amendedby the 46th Legislature.Whether a legal excess can be deter-
mined~toexist in the jury fund and a conditionexistsauthorizingthe
transferof such excessand into what fund, depend8upon all facts
developedshowingthe true conditionof financesof a county includ-
ing the status of the particularfund affected.
                                              Yours very truly
APPROVEDCCT 4, 1939                       AITOPKEK CEIERALOFTKKAS
WMK:IM:br                                 By /a/ Wm. J. R. King
Is/ W . F. Moore                                 Wm. J. R. King
FI2STASSISTAIiTA!lTORKKI @NEPAL                  Assistant
