,.



                                                       R-465
                             OFFICE      OF
                 TRE ATTORNEY USENEW
I




                                               May 20, 1947



     Hon. Royce Whitten
     County Attorney
     Lamar County
     Paris, Texas
     Dear Sir:                Opinion No. V-224
                              Re:   Maximum fees of the
                                    constables of Lamar
                                    County.
               Your request for an opinion from this Department
     is as follows:
               "This is to request your opinion oon-
          cerning the amount of fees of office that
          a constable may retain where he is not on
          a salary basis. The facts of the case are
          as follows:
               "Troy Bussell is constable of Precinct
          One, Lamar County, Texas, with office in the
          Court House at Paris, Texas. Lamar County
          has a oooulation of slightly over 50,000
          people-according to the-last Federal census .
          All the other officers of the County are on
          the salary basis, but the Justices of the
          Peace and the constables are on the fee basis.
               "(1) Under the law how much net profit
          from fees in office is the constable allowed
          to retain per annum?

               “(2)  Can the County Auditor at his dis-
          cretion permit the constable,to purchase a
          new automobile to be used in carrying on his
          official duties and allow such constable to
          pay for such automobile out of fees of office
          other than such fees of'office which he may
          retain as his net profit under the law?"
Honorable Royce Whitten - Page 2


          Lamar County has a population of 50,425 according
to the 1940 Federal Census, and its precinct officers are
compensated on a fee basis. Therefore, the compensation of
the constables is governed by Articles 3883 and 3891.
          The provision of Article 3883 applicable to Lamar
County is as follows:
         "In counties containing as many as thirty-
    seven thousand, five hundred and one (37 501)
    and not more than sixty thousand (60,OOOj inhabi-
    tants, or containing a city of over twenty-five
    thousand (25,000) inhabitants: County Judge,
    District or Criminal District Attorney, Sheriff,
    County Clerk, County Attorney, District Clerk,
    Tax Collector, Tax Assessor, or the Assessor and
    Collector of Taxes, Thirty-five Hundred Dollars
    ($3500) each; Justice of the Peace end Constable
    Twenty-four Hundred Dollars ($2400) each. . .*
          The provisions of Article 3891 applicable to Lamar
County read as follows:
          "Each officer named in this Chapter shell
     first out of the current fees of his office pay
     or be paid the amount allowed him under the pro-
     visions of Article 3883, . . .
          "In counties containing as many as thirty-
                     five hundred and one (37 501)
     %e~o:h~%%an       sixty thousand (60 OQOI or
     contain:+. a city of over twenty-fiv; tho&and
     (25,000) inhabitants, district and county of-
     ficers named herein shall 'retainone-third of
     such excess fees until such one-third, together
     with the amount spec,ifiedin Article 3883, a-
     mounts to Forty-two Hundred and Fifty Dollars
     ($4250). Precinct officers shall retain one-
     third until such one-third, together with the
     amount specified in Article 3883, amounts to - '-
     Twenty-two Hundred Dollars ($2200).n
          n* . .

          "(a) The Commissioners Court is hereby
     authorized, when in their judgment the financial
     condition of the county and the needs of the of-
     ficers justify the increase, to enter an order
     increasing the compensation of the precinct,
     county and district officers in an additional
    Honorable Royce Whitten - Page 3


b       emount not to exceed twenty-five (2%) per cent
        of the sum allowed under the law for the fiscal
        year of 1944, provided the total compensation
        authorized under the law for the fiscal year of
        1944 did not exceed the sum of Thirty-six Hundred
        ($3600.00) Dollars."
            .'Subdivision (a) of Article 3891, above quoted, autho:
    ises the Commissioners' Court when in their judgment the finan
    cial condition of the county and the needs of the officers
    justify the increase to enter en order authorizing the precinc
    officers to retain out of excess fees an additional amount not
    to exceed 25% of the maximum sum allowed under the law for the
    fiscal year 1944. The maximum compensation the precinct of-
    fiaers of Lamar County could receive in 1944 was the maximum
    such officers could receive under laws existing August 24, 193!
    The maximum compensation precinct officers of Lamar County cou:
    receive under laws existing August 24, 1935, as fixed by Artic:
    3883 and Article 3891 as amended by Ch. 327, Acts of the 44th
    Legislature, p. 752, was $2400.
              Therefore, it is the opinion of this Department that
    the maximum fees constables of Lamar County can retain is $3001
    ($2400 plus $600) provided the Commissioners' Court has enterei
    en order increesing their compensation in an additional emount
    of 2% of the sum allowed under the law for the fiscal year
    1944. The $600 increase, however, must be paid out of the one.
    third excess fees provided for in Article 3891.
              In answer to your second question, it was held in
    Opinion No. O-4342 that a constable compensated on a fee basis
    is entitled to deduct from excess fees necessary traveling ex-
    penses incl~udingthe expenses of gas, oil and a reasonable e-
    mount of upkeep incurred by a constable in the discharge of hip
    official duties. We are herewith enclosing copies of our Opin
    ions Nos. O-1284, o-1304, O-1866, O-3194 end O-4342, which con.
    tain holdings of similar effect. In view of the foregoing, it
    is our opinion that the purchase of an automobile for a con-
    stable to be used by a constable in the discharge of his offic-
    ial duties is not "necessary traveling expense* and, therefore
    your second question is answered in the negative.
                              SUNMARY
              1. The maximum compensation which constables
         of Lamar County may receive is $3000. Any compen-
         sation over and above $2400, however, must be paid
         out of excess fees. Arts. 3883, 3891, V.C.S.
Honorable Royce Whitten - Page 4


          2. The constable is not authorized to pur-
     chase a new automobile out of fees of office.
                                   Yours very truly
                              ATTORNEY GENJIRkLOF TEXAS




                                    Assistant


                               ATPROVED



                               ATTORTGX GENERAL

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Enclosures
