            HE   ,L~ITORNEY          GENERAL
                        OFTEXAS




Honorable J. C. Gowdy
County Auditor
Wichita County
Wichita Falls, Texas
Dear Sir:               Opinion No. O-5014
                        Re: Under the facts set forth does
                             the commlssloners' court have the
                             authority to make settlement with
                             the constable and allow the addi-
                             tional amount for traveling ex-
                             penses,,and other related questions?
          Your letter of December 9, 1942, requesting the
opinion of this department on the questions stated therein
reads in part as follows:
          "I will appreciate your opinion on the fol-
    lowing:
         "Article 3899 R.C.S. provides for the monthly
   reports of officers compensated on a fee basis.
   Same requires them to submit an itemized and sworn
   statement of all the actual and necessary expenses
   incurred by him in the conduct of his offIce, which
   includes traveling expenses.
         "A Constable in this County made monthly re-
   ports of his receipts and office expense, same
   being audited and approved by this department If
   found correct. However, the Constable, in sub-
   mltting his annual report for 1941 sets out the
   amount of $483.73 for traveling expenses. On his
   monthly reports for the year 1941 the traveling
   expenses for the year amounted to only $129.59,
   which was supported by proper evidence of expendi-
   ture and allowed.
         "We made our auditor's report to the alstrict
   judges, also copies to commissioners' court, cover-
   ing this department, allowing on1 expenditures
   made In accordance with Article 3g99. We did, how-
   ever, before closing our audit on this department,
   request the Constable to submit to us for auditing
Bonyable   J. C. Gowdy, page 2        O-5014


    and approval properly receipted Invoices or other
    evidence of expenditures covering the difference
    in the traveling expenses. This the Constable was
    unable to do, therefore, the auditor's report was
    filed allowing only the $129.59 traveling expenses.
    After compilingour audit of this department for
    the year 1941, we found the Constable owed the
    County $395.52 In excess fees. Copy of same at-
    tached hereto.
          "Does the Commissioners Court have authorltg
    to make settlement with the Constable and allow
    the additional amount for traveling expenses?.
          "Does the County Attorney have authority to
    recormnendto the County Auditor or Commissioners
    Court or any court that this addttional amount for
    traveling expenses be allowed and settlement be
    made accordingly?
          "In the event it becomes necessary to employ
    outside legal assistance in collecting this account,
    or any other account for the County, who has author-
    ity to employ same?
           I!                   ,t
                .   .   .   .


          The precinct officers of Wichita County are compen-
sated on a fee basils. Wichita County has a population of
73,437 inhabitants according to the 1940 Federal Census.
          Article 3883, Vernon's Annotated Civil Statutes
provides In part:
          "Except as otherwise provided in this Act,
    the annual fees that may be retalned by precinct,
    county and district officers mentioned in this
    Article shall be as follows:
          ,I
           . . . .
          "4 . In counties containing sixty thousand and
    one (60,001) and not more than one hundred thousand
    (100,000) lnhabltants: . . . Justice of the Peace
    and Constable, Twenty-one Hundred ($2,100) Dollars
    each.
           . . . .II
          It

          Article 3891, Vernon's Annotated Civil Statutes
provides,in part:
Honorable J. C. Gowdy, page 3           O-5014


          "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 pro-
    visions of Article 3883, together with the sal-
    arles of his assistants and deputies, and au-
    thorized expenses under Article 3899, and the amount
    necessary to cover costs of premium on whatever
    surety bond may be required 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 hereinafter
    provided.
          II
           . . . .
          "In counties containing sixty thousand and
    one (60,001) and not more than one hundred thou-
    sand (100,000) inhabitants, . . . Precinct of-
    ficers shall retain one-third until such one-
    third, together with the amount specified in Art-
    icle 3883, amounts to Twenty-six Hundred Dollars
    ($2600).
          11
           . . . .I!
          The auditor's report with reference to the receipt,
disbursements, etc., of the precinct officer mentioned is as
follows:
                      "AUDITOR'S REPORT
                         C. H. CLARK
                   CONSTABLE PRECINCT NO. I
                               1
                      RECEWTS
    Criminal Fees                   y,i;;; .$
    Civil Fees
    Examining Trial Fees                ' 19:oo   $5,872.52
                  DISBURSEMENTS
    DEPUTIES' SALARIES:
    J. B. Scarbrough                $    ;yg
    J. J. McCarter
    D. R. Witherspoon                1,035:oo
    H. F. Leverett                     632.50
    V. L. Smith                        350.00
    Patsy Humphris                      55.00
    Peggy MathIs                        20.00     $2,972.50
                                                               ..   .




Honorable J. C. Gowdy, page 4             O-5014


    Premium on Bond                                   15.00
    Maximum Fees Allowed (Art.
      3883)                                         2,100.00
    OTHER DEDUCTIBLE EXPENSES:
    Postage                           $    15.90:
    Office Help                            45.00
    Traveling Expense                     129.59
    Telephone and
      Telegraph                             2.15      191.74
    EXCESS FEES                       8 593.28
    One Third Excess Fees Retain&
      by Officer                                     197.76
    Balance excess Fees Due County                   395.52&~.872.52

    NOT?3: Maximum Fees
             Allowed                 $2,100.00
           Excess Fees
             Retained                     197.76
           Total Compen-
             sation                  $2,297 :76”
          The case of Pierson v. Galveston County, 131 S.W.
(2) 27, among other things, holds that a ;fustFce of the Peace
was not entitled to recover from the county items of expense
claimed for postage, traveling expenses, and messenger ser-
vice during certain years in office, where the JustiCe of the
Peace did not render monthly statements of such expenses as
required by Article 389, Vernon's Annotated Civil Statutes.
In thfs case the Justice of the Peace merely filed annual
reports estimating the expenses In lump sum amounts. Under
the facts stated in your letter and the holdings of the court
In the case just mentioned, it is our opinion that your first
question should be answered in the negative and 9s:so answered.
          As we have answered your first question in the ne&-
ative it necessarily follows,that your second question must
be answered in the negative and is so answered.
          With reference to your third question you are ad-
vised that the commissioners','courtof Wichita County is legal-
ly authorized to employ outsMe legal assistance In collect-
ing the account mentioned, or any other account, 1n the event
it becomes necessary.
Honorable J. 6. Gowdg, page 5             o-5014


         .,Wequote from Texas Jurisprudence, Volume 11, page
575, as follows:

         i "The commissioners' court has power to employ
     attorneys to assist the regular constituted officers
     of the county in the prosecution of Its claims and
     suits, and to pay for such services out of the coun-
     ty funas. It seems, however, that the commLssloners’
     court does not have the power to deprive the county
     attorney of his rightful authority in this regard.
     The employment of counsel is restricted to special
     cases where the services of an attorney are required;
     nor has the court power to make an order which will
     warrant the payment of county money to an attorney
     for services neither required nor performed.", (Adams
     V. Seagler, 250 S.W. 413; Gibson v. Davis, 236 S.W.
     202; Terre11 v. Greene, 31 S. W. 631; Glooms v. Atas-
     cosa County, 32 S . W. 188) .
          Under the holdings of the above mentioned cases, It
IS apparent that the commissioners' court has the power and
authority to employ attorneys in the prosecution of Its claims
and suits and pay for such services out of the general fund
of the county where the county, as a whole, Is Interested and
affected In such proceedings.
          Trusting that the foregolng fully answers your in-
quiry, we are
                                  Yours   very truly
                                ATTORNEY GENERAL OF TEXAS


                                 By S/Ardell Williams
                                      Ardell Williams
                                            Assistant

AW:mp:wc

APPROVED DEC 18, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Qpinlon Committee By s/BWR Chairman
