Hon. Char~lesFt.Martin
County Auditor
Harrison County
Marshall, Texas
Dear Sir:             Opinion No. O-1866
                      Re: Under Article 3899 wou‘lda constable
                           compensated on a fee basis be en-
                           titled to deduct as an expense ~of
                           office gasoline and oll'and up-keep
                           for his automobile for and during
                           the year?
        Your request for opinion has been received and care-
fully considered by this department.
        Article 3899 (a), Revised Civil Statutes of Texas,
reads in part as follows:
        "At the close of each month of his tenure
   of office each officer named herein who is com-
   pensated on a fee basis shall make as part of the
   report now required by law, an Itemized and sworn
   statement of all the actual and necessary ex-
   penses incurred by him in the conduct of his of-
   fice, such as stationery, stamps, telephone, pre-
   miums on officials' bonds, including the cost of
   surety bonds for his Deputies, premium on fire,
   burglary, theft, robbery Insurance protecting
   public funds, traveling expenses and other neces-
   sary expenses. The Commissioners' Court of the
   county of the Sherlff's residence may, upon the
   written and sworn application of the Sheriff
   stating the necessity therefor, purchase equip-
   ment for a bureau of criminal identlflcatlon such
   as cameras, finger paint cards, 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 Department of Justice and/or
   Bureau of Criminal Identification. If such ex-
   penses be incurred In connection with any particu-
   lar case, such statement shall name such case,
Ron. Charles R. Martin, page 2         O-1866


    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 of-
    ficer or such item was not a necessary expense of
    office, 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......."
        Article 3891, Revised Civil Statutes of Texas, reads
in part as follows:
        "Each officer 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 with
    the salaries of hls asslstants and deputies,
    and authorized expenses under Article 3899,
    and the amount necessary to cover costs of
    premium on whatever surety bond may be requir-
    ed by law. If the current fees of such of-
    fice collected in any year be more than the
    amount needed to pay the amounts above speci-
    fied, same shall be deemed excess fees, and
    shall be disposed of in the manner hereinafter
    provided......."
        This department has repeatedly held that a constable
operating upon a fee basis is authorized to deduct the neces-
sary expenses incurred in performing the duties of his office
including traveling expenses out of his excess fees of office
provided he complies with Articles 3899 and,38ql,~supra. See
opinion of this department dated October 11, 1937, written by
Hon. James N. Neff, Assistant Attorney General, and recorded
in.Vol. 378, pages 555-6, Letter Opinions of the Attorney Gen-
eral of Texas, and other opinions of this department.
        "Gasoline. oii and.a reasonable amount of
'UD-keeDB5' would clearly come within the meaning of travel-
ing expenses in this situation.
        You are therefore respectfully advised that it is the
opinion of this department that a constable compensated on a
fee basis would be entitled to deduct from his excess fees as
an authorized expense of office, the,necessary traveling ex-
penses, including the expense of gas, oil and a reasonable
amount of "up-keep", incurred by the constable in the discharge
of hIi official duties , provided he complied with Articles
3899 and 3891, supra.
-   -




    Hon. Charles R. Martin, page 3           O-1866


                                     Very truly yours
                                ATTORNEYGENERAL      OF TEXAS


                                     By s/Wm. J. Fanning
                                          Wm. J. Fanning
                                               ,Asslstant
    WJF:AW

    Approved FEB 24, 1940
    s/W. F. Moore
    FIRST ASSISTANT
    ATTORNEY GENERAL
    Ap~oved   Opinion Committee By s/Bm   Chairman
