Honorable Nolan Queen
Criminal District Attorney
Park~erCounty
Weatherford, Texas
Dear Sir:             Opinion No. O-4719 "'
                      Re: County is not authorized to pay'
                           expenses of office of Justice of
                           the Peace on fee system and re-
                           lated matters,
        Your request for opinion has been received and care-
fully considered by this deparment. We quote from your re-
quest as follows:
       "Some questions have arisen with reference to
   items of expense and charges of the Justice of the
   Peace here in Weatherford, which is a fee office.
   We find in auditing, that the Justice of the Peace
   has filed each month, as expenses, so much for a
   stenogrspher, and $12.50 as average car expense in
   coming to and from the~.office,and so much for
   stamps, for which he has no purchase receipts, but
   is an estimate only.
       "NOW, I find that the Commissioner's Court,
   during the last year, 1941, approved these several
   items on the expense account of the Justice of the
   Peace. All of these Items were paid out of the
   fees of the office, but this year, it is very doubt-
   ful whether or not there will be any excess fees of
   office, and in that event, it is the opinion of the
   Justice of the Peace th t these expenses should be
   paid by Parker County, wa ether he has any excess
   fees or not.
       "Now the question is whether or not the sten-
   ographer's fee, the travelling expense fee and the
   stamp expense can be legally charged by the Justice
   of the Peace to Parker County. There is no record
   that the Commissioner's Court has ever approved
   the appointment or selection of a stenographer, nor
   is there any record where the Justice of the Peace
   ever filed any application for authority to employ
   a stenographer.
                                                          e   -.   ..,




Honorable Nolan Queen, page 2           O-4719



        "In as brief a way as,possible, I have tried
    to state the questions involved, and would appre-
    ciate very much your opinion at your earliest con-
    venience as to whether~or not-these items of ex-
    pense under the Circumstances, may be legally
    charged by the Justice of the Peace, and paid by
    Parker County.
        11
         . . . . ,I
        Subdivision (a) of Article 3899, Vernon's Annotated
Texas Civil Statutes, reads in part as follows:
        "Art. 1899.   1897 Exaense account

        (a) 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 actunl and necessary expenses
    incurred by him in the conduct of his office, such
    as stationery, stamps, telephone, premuims on offi-
    cials' bonds, including the cost of surety bonds
    for his Deputies, premium on fire, burglary, theft,
    robbery insurance protecting public funds, travel-
    ing expenses and other necessary expenses.
    The amount of such expenses, together with tie' '
    amount of salaries paid to Assistants, Deputies
    and Clerks shall be waia out of the fees earned bs
    such officer.   . . . ." (Underscoring ours)
        Article 3902, Vernon's Annotated Texas Civil Sta!tutes,
reads in part as follows:
       "Whenever any district, county or precinct
   officer shall require the services of deputies,
   assistants or clerks in the performance of his
   duties he shall apply to the County Commissioners'
   Court of his county for authority to appoint such
   deputies, assistants or clerks, stating by sworn
   application the number needed, the position to be
   filled and thenamount to be paid. Said applica-
   tion shall be accompanied by a statement showing
   the probable receipts from fees, commissions and
   compensation to be collected by said officer dur-
   ing the fiscal year and the probable disbursements
   which shall include all salaries and expenses of
   said office; and said court shall make its order
   authorizing the appointment of such deputies, as-
   sistants and clerks and fix the compensation to be
Honorable Nolan Queen, page 3          o-4719


    paid them within the limitations herein prescribed
    and determine the number to be appointed as in the
    discretion of said~court may be proper; provided
    that in no case shall the CommlssionePs' Court or
    any member thereof attempt to influende the appoint-
    ment of any person as deputy, assistant or clerk in
    any office. Upon the entry of such order the of-
    ficers applying for such assistants, deputies or
    clerks shall~be authorized to appoint them; provided
    that said compensation shall not exceed the maximum
    amount hereinafter set out. The'compensation which
    may be allowed to the deputles, assistants or clerks
    above named for their services shall be a reasonable
    one, not to exceed the following amounts:
        11
         . . . . .,,
          It is our opinion that under Subdivision (a) of Article
3899, V. A. C.S., supra, the legitimate expenses of office of
a Justice   of the Peace operating under~ the fee system must be
paid from the fees of his office and cannot be paid by the
county. We therefore answer your question in the negative.
        We also wish to point out that the Justice of the
Peace has no authority to employ a stenographer. However,
he could employ a clerk if authorized by the Commissioners'
Court under Article 3902, V. A. C. S. It is a matter for the
Commissioners'Court to determine whether an employee of the
Justice of the Peace is a stencgrapher or a clerk. (See
opinion No. O-1874 of this department, a copy of which is en-
closed herewith for your information). If the Justice em-
ployed a clerk without authorization from the Commissioners'
Court in the beginning but such employment was later ratified
by the Commissioners' Court, the same would constitute a
legitimate expense of office which the Justice could pay out
of his fees of office. (See Cameron County vs. Fox, 61 S.W.
(2na) 483).

        You further state that the Justice merely estimates
the amount of his stamp expense. This is improper ana the
Commissioners' Court is not authorized to accept a mere esti-
mate of expenses. (See the case of Pierson, Justice of the
Peace, et al. vs. Galveston County, 131 S.W. (2nd) 27).
        You also state in your letter that the Justice claims
traveling expenses for "coming to and from the office". This,
we think, is purely a personal expense and not an expense of
office.
                                                        .   .-..




Honorable Nolan Queen, page 4        O-4719


        But in any ana all events, non6 of the items of ex-
pense-~setout in you letter, whether legal or Illegal, could
be charged to the County under the facts stated.
                                Very truly yours
                            ATTORNEY GENERAL OF TEXAS


                                By s/k%. J. Fanning
                                     Wm. J. Fanning
                                          Assistant

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APPROVED JULY~31, 1942
s/Gerald C, &M
ATTORNEY GENEEAL OF TFXAS
Approved Opinion Committee By s/EMS Chairman
