         OFFICE      OF THE    ATTORNEY        GENERAL   OF TEXAS

                                   AUSTIN




HcinorableD. Riotwd Voges
County Attorney
Wilson uounty
Floresvllle,      Texas

Dear   sir1



              Your    reqwat     for    op
oarefully~mside~dbythis
letter   of request       aa id.lava:




       &all attend        t
       ahall r6cei




                                                  ia 1907, rtnorder
                                             onem*   Comt  of Wilson
                                              8uthority &ranted by
                                             oxu Statuter, 1936, and
                                       e8 OS the Ccaanisrioners~
                               ounty    Court vould in rddttlan     to
                                term  of the County Court, a8
                               ale 1961 haYa rlxaddLtlaaP1
                              unto court, en- UAO day e&a.
                   this day neUiher the County Judge,
       nor I, the Sheriff or the Attorneya of Wlllrm
       CountyJnww t&atswhoxWrhadbeengsaaedin
       1.907. TherefOre the Bhertif'h88 never pres6&&d
       a bill for att       t&l8 one day of the oomts
       oourt, nor did        faut, attend this l3ourtapI
       the cne day of the 8lxaddltlaLpltWJM Of the
       uourt.
BonombleD.RiohardVoges,   Page2


         "Please advise me whether or not the
    Sheriff & entitled to oompensatlonas provided
    under such clrcumstance89
         "It la amtemplated by the Oomnlsslmers~
    Cowt to pass a new order, extending the six ad-
    dltlonsl terms of the County Court from me day
    to three weeks erch. However, sitme it la not
    expeoted to have a jury for eaoh term of aald
    Court, nor is it thought that very muah business
    vi11 be disposed of, and sina the Sherlii  will
    not bo required to be 3.natt&Manae of said
    aourt, and actually will not be in attendance,
    unless a aase is 01 trl.al,will the fees provided
    in the above quoted Artlale have to be paid.
         "The reasm that we desire to extend the
    terms of the Court from one day to three weeks is
    that we do not vimt to keep a persaa ohrrged vith
    a ailsdemeanorin jail to avalt trial In the County
    Court for thxwe or four veeka , and vould rather
    have ten terms, m permltted by law, for three
    weeks each and in this way ve oould dispose of our
    Co~tyOourtIlclsdenwn61.aa8es In 8hortorder,how-
    ever, if It is required to pay the Sherfff Four
    Dollars perdayfor eaehday of the oourt, the Ooun-
    tg aan not afford to do so.
         "In thla ocmnectlcm,in view of the holding In
    the case of Bums w. State, 61, 8. Y. (2d) 313,
    Justloe Christian used the followingwordar
         “Where  the law fixing the fee la settled
    and plain the rule, in its rlgor, will be applied.'
         "The sheriff of this County under our statutes
    is a fee offlcer and la entitled to anly swh fees
    aa are specifloallyallowed by atatutee.
    county Cattle company w. UoDermett 281 S.“:?%3.
         "Fees by lmplioatlonare not permitted. Ho-
    Calla vs. City of Rookdale et al, 246 8. W. 654.
         "Sheriff is not entitled to $2.00 a day for
    attending on Ccmmrissl~ers~ Court but hla aompensa-
    tlca wa8 the ex-orfioioallowanoe uader Article 39%.
    Robinsoa vs. Smith Uounty, 76 8. W. 584.
Bonorab1e D. Riohwd VOgeS, Page 3


           "I am of opinion that the Sheriff vould
      be entitled to pay for eaoh day of the County
      Court whether or not he or his deputies be in
      attendance so long as they were in and about
      the Courthouneend tither or not a case was
      being tried. I am ala0 of the oplnlrm that if
      the court advised the Sheriff that hi8 atten-
      dame was not necess~y, that the Sheriff
      neverthelessbe entitled to Such pay."
           The poptitim Of WilSCZiOOrm , T~x%S, 18 Seven-
teenThou8endSixEundredendSlx      (17,606
                                        "I inhabihds ao-
cordkg to the lsat preoedlng Federal Oensua and the couutg
OfflCitiS Of soid COlXityal'8O~Sated      Op 0 fee baSi8.
           Artlole 3933, Revised 01~11 Btatuter of Texas,
NlsdS in PlWt M fO11OWSl
           "aher1ff0Sb11 xwoelve the following fees:


           “For every day the Sheriff or hi0 deputy
      Shrl1 attend the d%Striot 02’ Oolmty OoUI’t, he
      SW1 rewlve four dO11WS (44) a day to be
      paldbythe county for eaoh day that the sheriff
      by blnmelf or 8 deputy shall rttand safd oourt."
              Thla department&    repeatedlyrulsdthat8sherlff
la entitled to pay for attendpnoe upcm the court under Artiole
3933,  SUprO,   only when thenaourt 18 aetuol1y In UeeSiQl ,sad
not -8      merely 0QlStl’UCtiVdy  ill sessicm.


           We quote from en OpzniCa of this department,dated
September 28, 1937, ad&eaSed to Honorable Be';J. Deen, ~a
f011ow31
           "In an opinion here:;oforerendered by
      this departmenton Februwy 21, 193, whlah
      was ruled that the sheriff vaa antitled to
      the feea mentimed.       . onlywhslrthe court
      Y88 8OtUdly in EW388iC?& The oplnim OC1ll8trUeS
      the phrase taotuallyin seaalmt to mean the
      presence of the judge, and it also points out
      the fact the judge muet assume the benah and pro-
      seed with the business of the court. This Opin-
      ion has been followedbythia departmenton
      numerous 0ccas1on0."
Honorable D. Richard VOgeO, Page     4


            We   qUOte from oplnlca no. 0-966   of this departmeat,
dated June 13,    1939, as follcuer
            "You are B38peCtftilpadvised that it I.8
      the opinlan of tbi8 departmrrmtthatthe sheriff
      of Walker  County is entitled to $4.00 each day
      he is actually in attendance upon the court
      8tiCe the St8tUt8 Speoifles that thi8 SUm 18
      to be paid for each day that the sheriff OP
      his deputy sbll attend said oourt.
      should be allwed where there ie no BIIC
                                            p%?%&E
      aawe even though the court may be in setlsim
      md is performing its varlou8 duties where
      court 18 required to perform my    Anrotima mere
      the attendauce of the sheriff or his deputy ia
                             tb b       lnmlndthat
      nt%%F===
          u 08 permittl73gFEmpdml
                       It               to pub110 of-
      ficials must be strlotly oanstrued and it is a
      settled policy of the oourts not to permit the
      payment of f88o or other form8 of ooqmnscrtlca,
      ~mleas the statutes 8peolfloal.ly and cleazly au-
      thorize the Same.' (Wd8l'8UOl'~gOurs)
           In ausweito your filrstqufmtim,w.Lderthe facts
                    3 and 4 OfgoUl'letta, Vh9l’eiU it 18
Stated in parPgl'aphf4
admlttedthatthe SherLffva8notl.n attendanoe on the oounty
cour?t,ltiathe opinlm of thla depeMmmtthetthe        sheriff
vould not be -titled to CompemJatlcnuuder suoh clroum8tano88
end your first questlan is therefore auswered &I the negative.
           With refersace to the frets atated and the questime
roised In paragraphs6, 7 pnd I.2of your letter, you are
respectfullyadvlaed that it is the opinion of this dePaFtment,
uuder said facts:
           1. The sheriff vould be entitled to pay for wh
day the judge required him to be In 8tteudance an the oouuty
court vhile Said comt vas actually in sessim as defined above.
           2.  The sheriff vould be sntltled to pay for each
day he attended comity court actually ln seegllonwherehi8 at-
tendancewas necessary.   In the absence of abufseof dlecretlon
or capriciousw arbitrsrg omduct on the part of the oomty
judge we th&lc the aounty judge@8 decielcm as to whether or not
the attendanceof the sheriff on county court VOB nece88m&
would be cmtrolllng.
Honorable D. Richard Vogea, Page 5


           3. The ahbrlff would not b8 entitled to aompm-
satlca in aueh olroumstancsaif hla attendance aa court vaa
neither necessary nor required.
            4. If the judge required the sheriff to attxmd
the COUI-t Vh~l.l8 it YM aCtIdly in se88iw or if the ah8riff
attended such court while it vaa aotually in aeeslcn vhen
it was necessary th8n the sheriff would b8 entitled to oom-
pcmsation.
          Trusting that this satlsfaatorllyanavers your
inquiry,and xlth best regards, we u-8
                                     very   truly   your8
                               Al’TOBliEY
                                        GElW3AL OF TEMS




WJFrAW

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