                          OF    TEXAS
OERALDc. MANN             Auwruu II. -




   Honorable L. P. He&d
   CourityAuditor
   Bell county
   Belton, Texas
   Dear Sir:                     OpFnFon No. 0-399~
                                 Re: Are'the  Items submittedby
                                      the constable and justiae
                                      of the peace authorized de-
                                      ductions from fees?
                                      Is it the duty of the county
                                      audltor or the acmmissloners~
                                      cqurt to approve the annual
                                      accounts of the above men-
                                      tioned precinct officers?
           Your reoent request P& an opinion of this de-
   partment on the above stated questions has been received.
           We quote from your letter as follows:
           "Will appreciate if you will advise me with
   peferenae to the following matters:
            "We have a Constable that shows In his annual
   report that his offiae earned and collected $3,915.50
   during the year 1939; IncidentallyI may say that the
   Comml.sslonerlsCourt have left all Constables and Justiae
   of the Peace on the Fee basis; Along with this he also
   lists as authorized deductions the following items;
   "Maximum fees allowed under Art. 3883-3883d       1,800.oo
   Payment of Deputy Constables (whose appoint-
             ment was approved by Cap. Court)          900.oo
   Stationery and offiae supplies                       15.00
   Telephone and telegraph                             250 .oo
   Postage                                              30 .oo
   TravelFng expense
                  Total Deductions                  -k%e+-
            "No other remarks of any descriptionare made
   with reference to the Deductions, and I am just wondering
   If you will advise me whethe* or not'any otiall of the
                                                             -   -




Honorable L. P. Heard, page 2 (O-399)


items above set out could be classed as authorizedde-
ductions.
         "Also we have Justice of the Peace who shows
as Authorized deductionsthe following:
"Maximum fees allowed                          1,800.oo
Stationeryand office supplies                     30.00
Telephone and telegraph                           50.00
Traveling expense                                 36.00
Office Rent                                      180.00
Ice for office
Water bill, soap, paper eta. for wash room        406%
ffasfor heating                                   6&i;;
Lights for office, fan and radio
Janitor Service                                   72 I00
         Total                                $2,454 .OO
         "No other notations are made tith reference to
these items.
         "I may aay that neither myself ncrrthe Commls-
sioner'sCourt were Informed of the neaesslty of any of
these Items, nor has the Court passed any orders or ap-
proval of any of the Items except the appointmentof the
Deputies of the Constable.
         "May I ask the same question wl.threferenoe to
the Justlae of the peace as was asked about the Constable.
         "Also, will you please advise me upon whom the
duty of the approval of the annual account falls. It
seems to me that It is incumbent upon the Commissioner's
Court, but just at thFs time I am unable to locate the
law with regards to the approval of annual reports."
         The population of Bell County according to the
last federal census is 50,030 Inhabitants.
         Article 3883, Vernon's Annotated Civil Statutes,
reads in part as follows:
         "Rxcept as otherwiseprovided In this Act,
    the annual fees that may be retained by pre-
    cinct, county and district officersmentioned
    In this Article shall be as follows:
1’




     Honorable L. P. Heard, Page 3 (C-399)


              ". . ;

              “3 . In counties aontalnlng as many as
         thirty-seventhousand five hundred and one
          37 501 and not more than sixty thousand
         {~O'OOO] Inhabitants or containinga city
         of &er twenty-fiveihousand (25,000) lnhab-
         ltants: County Judge, District or Crlmlnal
         District Attorney, Sheriff, County Clerk,
         County Attorney, District Clerk, Tax Colleotor,
         Tax Assessor, or the Assessor and Collector of
         Taxes, Thirty-fiveHundred ($3500.00)Dollars
         each; Justice of the Peace and Constable,
         Eighteen Hundred ($1800.00)Dollars each."
              Article 3891, Vernon's Annotated Civil Statutes,
     reads in part as follows:
              "Each offlocr 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 Artlale 3883, together with
         the salarles of his asslstantaand deputies,
         and authorizedexpenses under Article 3899,
         and the amount necessary to cover costs of
         premium on whatever surety bond may be requlr-
         ed by law. If the current fees of such office
         collected in any year be more than the amount
         needed to pay the amounts above specified,
         same shall be deemed excess fees, and shall
         be disposed of In the manner hereinafterpro-
         vided.
              11
               . . .
                "In counties containingas many as thlrty-
         seven thousand, five _ hungred and one (37 501)
         and not more than sixty tnousand '(~o,ooo~,or
         containinga olty of over twenty-fivethousand
         (25,000) Inhabitants,dlstrlct and county of-
         ficers named herein shall retain one-third of
         such excess fees until suah one-third,together
         with the amount spealfled In Artlola 3883,
         amounts to Forty-two Hundred and Fifty Dollars
         ($4250).    Preclnat officers shall retain one-
         third untll such one-third,to ether with the
         amount specified In Artlole 38 83, amounts to
         Twenty-twoHundred Dollars ($2200)."
                                                           ‘t   .




Honorable L. P. Heard, page 4   ( O-399)


         Article 3896, 3897 and 3898, Vernon's Annotated
Civil Statutes reads as followsI
        "Art. 3896. Each district, county and pre-
   alnct officer shall keep a correct statement of
   all fees earned by him and all sums oomlng Into
   his hands as deposits for aosts, together with
   all trust funds placed In the registry of the
   court, fees of offloe and commissionsIn a book
   or In books to be provlded~hlmfor that purpose,
   In which the officer, at the time when such de-
   posits are made or suah fees and commFaslonsare
   earned and when any or all of such funds shall
   come Into his hands, shall enter the same; and
   It shall be the duty of the oounty auditor In
   counties having a aountjrauditor to annually exam-
   ine the books and acaounts of such offloers and
   to report his findings to the next succeeding
   grand jury or district aourt. In aountles having
   no county auditor, It shall be the duty of the
   Commissioners1Court to make the examination of
   said books and acoounts or havesthe same made and
   to make report to the grand jury as hereinabove
   provided.
        "Art. 38%'. Each district, county and pre-
   olnct offlaer, at the olose of each fiscal year
   (December31st) shall make to the district oourt
   of the county In which he resides a sworn state-
   ment In triplicate (on forms designed and ap-
   proved by the State Auditor) a copy of whlah
   statement shall be forwardedto the State Audi-
   tor by the clerk of the district court of said
   county within thirty (30) days after'the same
   has been filed In his office, and one copy to be
   filed with the county auditor, If any; otherwise
   sald copy shall be filed with the CommIssIonera
   court. Said report shall show the amount of all
   fees, commissionsand aompensationswhatever
   earned by said offiaer during the fiscal year;
   and secondly, shall show the amount of fees, com-
   mlsslons and compensationscollected by him dm~-
   lng the fisaal year; thirdly, said report shall
   contain an Itemized statement of all fee8, commls-
   slons and compensationsearned during the flsoal
Honorable L. P. Heard, page 5 (O-399)


    year which were not collected,together with
    the name of the party owing said fees, com-
    missions and compensations. Said report
    shall be filed not later than February 1st
    following the alose of the fiscal year and
    for each day after said date that said report
    remains not filed, said offlaer shall be liable
    to a penalty ef Twenty Five ($25.00) Dollars,
    which may be reowered by the oounty in a suit
    brought for such purposes, and In addition said
    officer shall be subject to removal from office.
         "Art. 3898.  The fiscal year, tithln the
    meaning of this Aot, shall begin on January 1st
    of eaah year; and eaoh district, county and pre-
    cinct offlaer shall file his report and make
    the final settlementrequired In this Aat not later
    than February 1st of eaoh year; provided, however,
    that officers reaelvlng an annual salary as oom-
    pensatlon for their services shall, by the olose
    of eaoh~month, pay Into the Offlaersl Salary Fund
    or funds, all fees, aommlaslonsand oompensatlon
    aolleatedby him during said month. Whenever such
    offlcer'servesfor a fractionalpart of the fls-
    oal year, he shall neverthelessfile his report
    and make flnal settlementfor suah part of the
    year as he serves and shall be entitled to such
    proportionatepart of his oompensatlonas the
    time for his servloe bears to the entlre year.'
         Paragraph (a) of Article 3899,   Vernon's Annotated
Civil Statutes, reads as follows:
         "(a) At the close of eaoh month Oh hiti
    tenure of office each offloer named herein who
    Is compensated 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 expenses incurred by him In the
    oonduct of ~hlsoffloe, suah as stationery,stamps,
    telephone, premiums on offloialslbonds, lnclud-
    lng the cost of surety bonds for his Deputies,
    premium on fire, burglary, theft, robbery Insur-
    ance proteatlng publla funds, traveling expenses
    and other necessaryexpensesr The Commlssionersl
    Court of the oounty of the Sheriff's residence
Honorable L. P. Heard, page 6 (O-399)


   may, upon the written and sworn application
    of the Sheriff stating the necessity there-
   for, purchase equipment for a bureau of
   arlminal ldentlflcatlcnsuch as cameras,
   finger print cards, Inks, chemlaals,mlcro-
   scopes, radio and laboratoryequipment,fll-
   lng cards, filing cabinets, tear gas and other
   equipment In keeping with the system Iiiuse by
   the Department of Publlo Safety of this State
   or the United States Department of Justice and/or
   ~Bureauof Crlmlnal Identlfloatlon. If suoh ex-
   penses be lnourred In aonneotlonwith any parti-
   aular case, such statement shall name suah case.
   Suah expense aocount shall be subject to the
   audit of the County Auditor, if any, other-vise
   by the CcunmlsslonerslCourt; and If It appears
   that any Item cf suoh expense was not Incurred
   by suah offloer or such item was not a neces-
   sary expense of office, such Item shall be by
   suah auditor or oourt rejeoted, la which ‘case
   the aolleatlons of such Item may be adjudicated
   In any oourt of oompetent jurlsdibtion. The
   amount of salaries paid to Assistants.andDepu-
   ties shall also be olearly shown by suoh office,
   giving the name, position and amount paid each;
   and In no event shall any officer show any great-
   er amount than actually paid any such Assistant
   er Deputy. The amount of suoh expenses, togeth-
   er with the amount of salaries paid to Assistants,
   Deputies and Clerks shall be paid out of the fees
   earned by such officer. The Commissioners'Court
   of the county of the Sheriff's resldenae may,
   upon the written and sworn applicationof the
   Sheriff stating the necessity therefor, allow
   one or more automobilesto be used by the Sheriff
   In the dlsaharge of his offlalal duties, which,
   if purchased by the County, shall be bought in
   the manner prescribed by law for the purchase of
   supplies and paid for out of the Qeneral Fund of
   the county and they shall be and remain the property
   of the county. The expense of maintenance,depre-
   ciation and operation of suah automobilesas may
   be allowed, whether purchased by the county or
   owned.by the Sheriff or his Deputies personally,
   shall-be pald for by the Sheriff and the amount
   thereof shall be reported by the Sheriff, on the
   report above mentioned, In the same manner as
   herein provided for other expenses."
Honorable L. P. Heard, page 7 (O-399)


         The salaries of Justices of the Peace and Con-
stables of Bell County are respeotively,Eighteen Hundred
Dollars ($1800.)plus one-third of the fees colleoted In
excess of such amount of salary, as provided In Article
3891. sum-a, so that suoh total salary shall not exceed
the sum of Twenty-two Hundred Dollars;
        In this oonneotlon we quote from our Opinion
No. O-131, as follows:
         "we construe Article 3891 to'mean that in com-
    puting the excess fees to be allowed these offioers
    It Is not permlsslble to compute one-third of all
    fees colleoted but only one-third of suoh fees In
    exaess of and above $1,800.00. That Is to say,
    if the total fees aollected should be $3,000.00,
    the Justioe of Peaoe and Constable would be en-
    titled to retain one-third of $1200.00 whlah would
    be the sum of $400.00, thereby making the total
    salary and exaess fees allowed to such officers to
    be the sum of $2200.00."
         In the case of Pierson, Justfoe of the Peace, et
     v. Galveston County, 131 5. W. (26) 27;referrlng to
%le     3899, It was held, among other things that the
purpose of the statute requiring aounty off&s    to make
a monthly statement of expenses lnaurred In the oonduot of
their offices was to provide a means of ascertainingthe
correctnessof suah expense items eaah month as they are
Incurred and that the actual expenses paid or Incurred by
suoh officers constitutethe measure of the offlclaliB
right to recoupment from the county. This case further
holds that a Justice of the Peace was not entitled to re-
cover from the county Items of expense olalmed for postage,
traveling expenses, and messenger service during certain
years while In offlae, where the Justice did not render
monthly statements of'such expenses as required by statute,
but merely filed annual reports estimating the expenses In
lump sum amounts. This a886 also further holds that the
statute requiring oounty officers to make a monthly state-
ment of expenses lnaurred In the conduat of their offlaes
aannot be evaded by giving yearly estimates of expenses In
lump sum amounts.
        Referring to Artiole 3899, supra, we quote from
the above mentioned case as follows:
                                                              .   .




Honorable L. P. Heard, page 8 (o-399)


         "The manifest purpose of this statute was
    to provide a means of ascertainingthe oorrect-
    ness of expense Items eaoh month as they are
    inaurred. The actual expenses paid or Incurred
    oonstltutethe measure of the official'sright
    to reooupment. The monthly ltemlzatlonIs for
    the protection of the county by affording a means
    of ascertalnlngthe faat and amount of such
    claimed Item of expense and whether It was pro-
    perly chargeableas suah. It Is manifest from
    the annual reports and confirmed by the evidence
    that these expenses were merely estimated and a
    lump sum given each year. The statute would be
    of no value If its salutory provisions could be
    evaded In this manner. F ."
         The authorized expenses which may be deducted
under Artlale 3899, supra, are suoh expenses as are enum-
erated therein, and an officer to be entitled to make such
deductionsmust aomply with Artiole 3899, supra, by making
an Itemized and sworn statement of all the aatual and ne-
cesssry expenses inourred by him In the aonduat of his
offlae at the olose of each month of his tenure of offloe.
Aa above stated, only those expenses whlah are authorized
under the statute oan be deduoted. P'rcmthe facts stated
In your letter, we preaume that neither of the above men-
tioned precinct offlaers made an Itemized and sworn month-
ly statement of the expenses Incurred by them In the con-
duct of their offices as required by Article.389g;supra.
Therefore, the opinion of the court In the aase of Pierson,
Justice of the Peace, et al. v. Galveston County, supra,
answers your first question.,
         Referring to your seaond question, you are ad-
vised that It is not the duty of the oounty auditor or the
ccmmlsslonerslcourt to approve the annual accounts of the
above named precinct offlaers exaept as'provided by Article
3896, making It the duty of the county auditor In counties
having a county auditor to annually examine the books and
accounts of such offlaers and to report his findings to the
next suaoeedlnggrand jury or district oourt. In counties
having no county auditor, it shall be the duty of the Com-
mlsslonersl court to make the examination of said books and
accounts or have the same made and to make the report to
the grand jury as required by law.
        The sworn statement required to be filed annually
by Article 3897, supra, Is not required by law to be ap-
Honorable L. P. Heard,   page 9


proved by the county auditor or the commlssionerslcourt.
        Trusting that the foregoing fully answers your
lnqulrles,we remain
                                       Yours very truly
                                  ATTORIIEYC;IEI4JZRALOFTEXAS


                                  By   /a/ Ardell Willlama
                                           Ardell Wllllams
                                                Assistant
AX:jm    SC


APPRCVEDFEB 29, 190

/a/ Gerald C. Mann
ATPORREYGEI'JERALOFTEXAS




                                       APPROVED
                                       Opinion Committee
                                       BY      BWB
                                            Chairman
